Amish devgan v uoi and ors (1)

REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 160 OF 2020
AMISH DEVGAN ..... PETITIONER(S)
VERSUS
UNION OF INDIA AND OTHERS ..... RESPONDENT(S)
J U D G M E N T
SANJIV KHANNA, J.
Applications for intervention are allowed.
2. The writ petitioner, Amish Devgan, is a journalist who, it is stated,
is presently the managing director of several news channels
owned and operated by TV18 Broadcast Limited, including
News18 Uttar Pradesh/Uttarakhand, News18 Madhya Pradesh/
Chhattisgarh and News18 Rajasthan.
3. The petitioner hosts and anchors debate shows ‘Aar Paar’ on
News18 India and ‘Takkar’ on CNBC Awaaz. On 15th
June, 2020,
at around 7:30 p.m., the petitioner had hosted and anchored a
Writ Petition (Criminal) No. 160 of 2020 Page 1 of 128
Digitally signed by
Jatinder Kaur
Date: 2020.12.07
16:48:52 IST
Reason:
Signature Not Verified

debate on the enactment1
which, while excluding Ayodhya,
prohibits conversion and provides for maintenance of the religious
character of places of worship as it existed on 15th
August, 1947.
Some Hindu priest organisations had challenged vires of this Act
before the Supreme Court, and reportedly a Muslim organization
had filed a petition opposing the challenge.
4. Post the telecast as many as seven First Information Reports
(FIRs) concerning the episode were filed and registered against
the petitioner in the States of Rajasthan, Telangana, Maharashtra and
Madhya Pradesh. The details of the FIRs are as under:
S.No. FIR No. Sections Police Station / State
1. 78/2020 153B, 295A, 298 IPC
66F of Information
Technology Act, 2000
Dargah, Ajmer
(Rajasthan)
2. 50/2020 153B, 295A, 298 IPC
66F of Information
Technology Act, 2000
Makbara, Kota
(Rajasthan)
3. 173/2020 295A IPC Bahadurpura,
Hyderabad City
(Telangana)
4. 218/2020 295A IPC Itwara, Nanded
(Maharashtra)
5. 217/2020 153A, 295A, 505(2) IPC Paidhuni, Mumbai
(Maharashtra)
6. 674/2020 295A IPC Originally registered at
P.S. Omati, Jabalpur
(Madhya Pradesh)
and subsequently on
30th
June 2020 was
transferred to P.S.,
Sector-20, Gautam
Buddh Nagar
(Uttar Pradesh)
1
The Places of Worship (Special Provisions) Act, 1991.

7. 337/2020 295A IPC Naya Nagar, Thane
(Maharashtra)
The gist of the FIRs is almost identical. The petitioner, while
hosting the debate, had described Pir Hazrat Moinuddin Chishti,
also known as Pir Hazrat Khwaja Gareeb Nawaz, as “aakrantak
Chishti aya... aakrantak Chishti aya... lootera Chishti aya... uske
baad dharam badle”. Translated in English the words spoken
would read – “Terrorist Chishti came. Terrorist Chishti came.
Robber Chishti came - thereafter the religion changed,” imputing
that ‘the Pir Hazrat Moinuddin Chishti, a terrorist and robber, had
by fear and intimidation coerced Hindus to embrace Islam.’ It is
alleged that the petitioner had deliberately and intentionally
insulted a Pir or a pious saint belonging to the Muslim community,
revered even by Hindus, and thereby hurt and incited religious
hatred towards Muslims.
5. The petitioner, as per the writ petition, claims that post the telecast
he was abused and given death threats on his phone, Twitter,
Facebook and other social media platforms. Fearing for his life and
limb, the petitioner had filed FIR No. 539 of 2020 dated 20th
June,
2020 at P.S. Sector-20, Noida, Uttar Pradesh, and submitted the
links to the threats received through social media platforms.

6. On or about 22nd
June, 2020, the present writ petition was filed
under Article 32 of the Constitution of India with an application for
interim relief. This writ petition came up for hearing on 26th
June,
2020 whereby notice was issued with a direction to the petitioner
to implead the informants in the respective FIRs/complaints. An
interim order was passed directing that till the next date of hearing
there would be a stay on further steps/action on the FIRs
mentioned in the writ petition, relating to the telecast dated 15th
June, 2020, and the petitioner was protected against any coercive
process arising out of or relating to the said FIRs.
7. Pursuant to the aforesaid liberty, the writ petition was amended to
implead the complainants. Thereafter, the writ petition was
amended on a second occasion. The prayers made in the last
amended writ petition to this Court are:
(a) for issue of writ of certiorari, quashing the
complaints/FIRs referred to above or any other FIR or
criminal complaint which may be filed thereafter
relating to the telecast in question dated 15th
June,
2020;
(b) strictly in the alternative, transfer and club the
FIRs mentioned above or elsewhere in the country
with the first FIR, i.e. FIR No. 78, P.S. Dargah, Ajmer,
Rajasthan;
(c) issue a writ of mandamus to the effect that no
coercive process shall be taken against the petitioner

in the FIRs so lodged or subsequent complaint or
FIRs on the subject broadcast; and
(d) direct the Union of India to provide adequate
safety and security to the petitioner, his family
members and his colleagues at various places in the
country.”
8. The petitioner, in his submissions, claims that he has faith in
Banda Nawaz Hazrat Khwaja Moinuddin Chishti and has also
gone on Ziyarat pilgrimage to Ajmer Sharif to offer respects and to
worship. Expressing regret, the petitioner claims that the attributed
words were uttered inadvertently and by mistake; in fact, the
petitioner wanted to refer to Alauddin Khilji and not Gareeb Nawaz
Khwaja Moinuddin Chishti. Realising his mistake and to amend the
inadvertent error, and to dispel doubts and vindicate himself, the
petitioner had promptly issued a clarification and an apology vide a
tweet dated 17th
June 2020. A video with similar clarification and
apology was also telecast by the news channel on the very same
day. Contention of the petitioner is that in a whirl, he had taken the
name of Chishti though he had no such intention, and he laments
his lapse as he did not wish to hurt anybody. Accordingly, he had
apologised to anyone who had been hurt. In addition, a number of
submissions have been made by the petitioner, which are
summarised as under:

 Multiple FIRs arising out of the same incident are abuse of law,
and violate fundamental rights of the petitioner and freedom of
press, causing a chilling effect on the freedom of speech and
expression.
 The FIRs are meant to harass and intimidate the petitioner; no
part of ‘cause of action’ has arisen in the areas where the FIRs
were lodged.
 On interpretation of Sections 153A, 295A, and 505(2) of the
Indian Penal Code, 1860 (in short, the ‘Penal Code’) and
Section 66-F of the Information Technology Act, 2000, (in short,
the ‘IT Act’), no offence whatsoever can be made out; the
allegations are based upon utterances in isolation by picking up
select words and not on the programme as a whole; the
petitioner did not have any malicious intent and mens rea to
outrage religious beliefs and feelings; the programme has to be
judged from the standard of a reasonable and strong-minded
person and at best the words exhibit carelessness without any
deliberate and malicious intent, which fall outside the ambit of
Sections 153A, 295A and 505(2) of the Penal Code.

 In the alternative, it is submitted that a case of trifle or minor
harm is made out, which would be covered by Section 95 of the
Penal Code.
 Again, in the alternative, it is submitted that all the FIRs should
be clubbed and transferred to Noida or Delhi.
Counsel for the petitioner has relied upon the following
decisions in support of his contention – Arnab Ranjan Goswami
v. Union of India and Others,2
Balwant Singh and Another v.
State of Punjab,3
Bhagwati Charan Shukla s/o. Ravishankar
Shukla v. Provincial Government, C.P. & Berar,4
Bilal Ahmed
Kaloo v. State of A.P.,5
Brij Bhushan and Another v. State of
Delhi,6
Devi Sharan Sharma v. Emperor,7
Emperor v. Sadashiv
Narayan Bhalerao,8
Gopal Vinayak Godse v. Union of India,9
Her Majesty the Queen v. James Keegstra,10
Niharendu Dutt
Majumdar v. The King-Emperor,11
K.A. Abbas v. Union of India
2
(2020) SCC Online SC 462
3
(1995) 3 SCC 214
4
AIR 1947 Nagpur 1
5
(1997) 7 SCC 431
6
AIR 1950 SC 129
7
AIR 1927 Lah 594
8
AIR 1947 PC 82
9
AIR 1971 Bom 56
10
(1990) 3 SCR 697
11
1942 FCR 38

and Another,12
Kedar Nath Singh v. State of Bihar,13
Lalai
Singh Yadav v. State of Uttar Pradesh,14
Lalita Kumari v.
Government of Uttar Pradesh and Others,15
Mahendra Singh
Dhoni v. Yerraguntla Shyamsundar and Another,16
Manzar
Sayeed Khan v. State of Maharashtra and Another,17
P.K.
Chakravarty v. The King,18
Pravasi Bhalai Sangathan v. Union
of India and Others,19
Queen-Empress v. Bal Gangadhar
Tilak,20
R. v. Zundel,21
R. P. Kapur v. State of Punjab,22
Ramesh
S/o Chhotalal Dalal v. Union of India and Others,23
Ramji Lal
Modi v. State of U.P.,24
Romesh Thappar v. State of Madras,25
Saskatchewan (Human Rights Commission) v. Whatcott,26
Shreya Singhal v. Union of India,27
State of Bihar and Another
v. P.P. Sharma, IAS and Another,28
State of H.P. v. Pirthi Chand
and Another,29
State of Haryana v. Bhajan Lal,30
State of U.P. v.
12
(1970) 2 SCC 780
13
AIR 1962 SC 955
14
1971 Crl.L.J. 1773
15
(2014) 2 SCC 1
16
(2017) 7 SCC 760
17
(2007) 5 SCC 1
18
AIR 1926 Calcutta 1133
19
(2014) 11 SCC 477
20
ILR (1898) 22 Bombay 112
21
[1992] 2 SCR 731
22
AIR 1960 SC 866
23
(1988) 1 SCC 668
24
AIR 1957 SC 620
25
AIR 1950 SC 124
26
[2013] 1 SCR 467
27
(2015) 5 SCC 1
28
1992 Supp. (1) SCC 222
29
(1996) 2 SCC 37
30
1991 Supp (1) SCC 335

O.P. Sharma,31
Veeda Menez v. Yusuf Khan and Another,32
Neelam Mahajan v. Commissioner of Police and Others,33
Superintendent of Police, CBI and Others v. Tapan Kumar
Singh,34
Superintendent, Central Prison, Fatehgarh and
Another v. Dr. Ram Manohar Lohia,35
T.T. Antony v. State of
Kerala and Others,36
and Virendra/ K.Narendra v. State of
Punjab and Another.37
9. The prayers made by the petitioner are opposed by the states of
Maharashtra, Rajasthan, Telangana and Uttar Pradesh, and the
private respondents. The informants submit that the petitioner is a
habitual offender and has on numerous earlier occasions offered
similar apologies. The petitioner had twice repeated the words
‘aakrantak Chishti aya,’ followed by the words ‘lootera Chishti aya’.
This assertion on three occasions conveys and reflects the
intention of the petitioner, who had described Khwaja Moinuddin
Chishti as an invader, terrorist and robber who had come to India
to convert its population to Islam. The pretext of inadvertent
mistake is an afterthought and a sham and unreal defence.
31
(1996) 7 SCC 705
32
1966 SCR 123.
33
1993 (27) DRJ 357.
34
(2003) 6 SCC 175
35
AIR 1960 SC 633
36
(2001) 6 SCC 181
37
AIR 1957 SC 896

Respondent No.9, namely, Saber Chausa Mohd. Naseer, in his
affidavit has stated that the name of Khwaja Moinuddin Chishti as
a Sufi Saint was taken by one of the panelists when the topic of
conversion was being debated. The panelist had gone on record to
state that the conversions at the time of Khwaja Moinuddin Chishti
happened for moral, religious and spiritual reasons and the
devotees and followers of Khwaja Moinuddin Chishti were inspired
by his teachings. The affidavit also states that the discussion at
that time was not in relation to Mughals or with reference to
Aurangzeb or Allaudin Khilji. Further, the petitioner had tampered
with the broadcast of the debate uploaded on YouTube on 16th
June, 2020, by deliberately deleting the part wherein the petitioner
had used the word ‘aakrantak Chishti’ (twice) and ‘lootera Chishti’.
These acts of sieving out of offensive portions, and the subsequent
apology were after the petitioner had learnt about the protests and
registration of the FIRs at Ajmer and other places. The
respondents claim that the apology is not genuine but an act of
self-defence. FIR at Ajmer was registered on 16th
June, 2020 at
11:58 p.m. whereas the first apology (via Twitter) of the petitioner
appeared on 17th
June, 2020, at 12:12 a.m., i.e., nearly 30 hours
after the live telecast of the show where offensive words were
uttered by the petitioner.

10. The points raised by the respondents can be summarised as
under:
 The petition ought to be dismissed as Article 32 has been
invoked in a cavalier manner. Remedy under section 482 of the
Code of Criminal Procedure, 1973 (hereafter referred to as,
‘Criminal Code’) was available to the petitioner.38
 The offending words were uttered thrice by the petitioner, which
shows his ill intention.39
The intention of the petitioner was to
create disharmony between the two faiths/groups and to incite
disorder.40
 The debate was a staged program, where no experts or
historians were on the panel; the program was staged to malign
the Muslims and to promote hatred.41
 The themes of the programs hosted by the Petitioner are
communal.42
 The conduct of the petitioner was against norms of journalistic
standards.43
 Petitioner uploaded an edited version of the video on Youtube,
where he had removed the part containing the offensive
speech. This was done after FIR was lodged as an attempt to
tamper/destroy the evidence.44
38
I.A. by Haji Syed Chisti, Khadim of Dargah; RESPONDENT NO. 9,
39
I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9, Respondent no. 6
40
I.A. by Haji Syed Chisti, Khadim of Dargah
41
I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra
42
Respondent no. 9, Respondent no. 10
43
Respondent no. 6
44
Respondent no. 9

 The Petitioner claimed that inadvertently he uttered “Chishti” in
place of “Khilji”, but there is no relation between these two
historical figures. Khwaja Chishti came to India in 1136 when
Md. Ghori was defeated by Prithvi Raj Chauhan for the first time
in the battle of Tarain. Whereas, Khiljis ruled in India from 1290
to 1320. So Khilji and Khwaja Chishti were neither
contemporaries nor related to each other.45
 Apology by the Petitioner was an afterthought. It came only
after the registration of FIR.46
The petitioner did not apologize
initially and let the followers of Khwaja Chishti be outraged, in
order to gain popularity.47
 The two persons, whose credentials the petitioner has
mentioned in the petition, to press that the members of the
community have forgiven him, is false. These two people as TV
personalities and nowhere represent the devotees of Khwaja
Chishti.48
 FIR need not have an encyclopaedia of the event. Even if only
material facts have been disclosed, it is enough to continue with
criminal proceedings.49
45
Respondent no. 9
46
I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9,
47
I.A. by Haji Syed Chisti, Khadim of Dargah; Respondent no. 9,
48
Respondent no. 9
49
Respondent no. 9

 Some communal elements in Maharashtra, after the broadcast
of the utterances by the Petitioner, used this opportunity and
started circulating this video to spread hatred.50
 Article 19(1)(a) of the Constitution is subject to express
limitations under Article 19(2) of the Constitution.
 The police should be permitted to file report under Section 173
of the Criminal Code and court should frame the charges. Then
only the petitioner would get the opportunity to defend himself in
the court.51
 Section 19 of the Cable TV (Regulation) Act prohibits cable TV
network to broadcast any content that promotes hate or ill will.52
 The broadcast was throughout the nation and thus cause of
action arose in Ajmer too, where the intervener resides and
serves as khadim to Dargah of Khwaja Chishti.
 Respondent no. 5, State of Uttar Pradesh,53
reiterated the facts
of the FIR lodged at the instance of informant Amish Devgan.
Also, it has been mentioned that one FIR which was filed in
Jabalpur against the Petitioner Amish Devgan was transferred
by Jabalpur police to Gautam Budhh Nagar.
 State of Rajasthan54
submitted:
(a) apology tendered by the petitioner would not dilute the
offence. Also, it was after 30 hours of the broadcast of the
show.
50
Respondent no. 9
51
Respondent no. 9 and Respondent no. 6
52
I.A. by Sajid Noormohammad Sheikh r/o Nashik, Maharashtra
53
sworn by DSP/ ASST. Commissioner, Noida
54
Respondent no. 3

(b) Allegations and counter allegations of facts are matter of
trial.
(c) Transfer all FIRs to Ajmer as one of the FIRs is there, and
matter also relates to Ajmer.
 State of Telangana55
submitted:
(a) Complainants/informants came to the P.S. Bahadurpura,
Hyderabad and made a complaint that the petitioner has
dishonoured Khwaja Chishti.
(b) As per State of Orissa v. Saroj Kumar Sahoo,56
probabilities of prosecution version can’t be denied at the
early stages.
(c) Normal course of investigation cannot be cut-short in
casual manner. Also, the accused has a remedy under
482 of the Criminal Code.
The Show and Debate
11. Before we examine the first prayer, we must take notice of the fact
that the transcript filed by the petitioner with the original writ
petition and the amended writ petitions is not the true and correct
transcript. As per these transcripts the petitioner is stated to have
only uttered the words “Akranta Chishti came... Lootera Chishti
came after then religion changed”. However, in the transcript filed
by the petitioner on 8th
July, 2020, it is accepted that the petitioner
had used the words ‘Akranta Chishti’ not once but twice. This is the
55
Respondent no. 4
56
(2005) 13 SCC 540

correct version. The petitioner accepts that the topic of debate was
relating to the challenge posed by a Hindu priest organisation to
the Places of Worship (Special Provisions) Act, 1991, according to
which the de facto position of religious places as on 15th
August,
1947 could not be changed or altered, though Ayodhya was kept
out of the ambit of the Act, and this petition was opposed by a
Muslim organisation stating that if notice is issued there would be
widespread fear among the Muslim community. After the prelude
initiating the debate, the petitioner, as per the transcript, had stated
“Today, this will be the key issue of the debate... Ayodhya Verdict
delivered, Why Kashi-Mathura issue left unresolved?... asking
Hindu Priests!”. The petitioner as per the transcript had then
declaimed:
“Now analyse the legal position of Kashi Mathura
issue...Hindu Priest organisation has reached Supreme
Court against Places of Worship (Special Provisions)
Act, 1991...According to this Act of 1946, the de facto
position of any religious place could not be altered in
any condition...According to Act a mosque could not be
changed into temple or a temple could not be changed
into mosque...This is impossible...The Ayodhya issue
was out of this ambit as it was already in litigation. The
Ayodhya issue was 100 year old dispute...The priest
organisation says that Places of Worship (Special
Provisions) Act, 1991 is against the Hindus...Today we
are not debating the issue of Kashi or Mathura...we are
debating the Places of Worship (Special Provisions)
Act, 1991...What changes should be made in this
Act?...if the arguments of Hindu Priests to be believed.”

12. We must also at this stage itself reproduce portions of the debate,
including the portion which the petitioner seeks to rely upon:
“I don’t want to make this debate a hot topic between
Hindu-Muslim community...I would like to discuss the
provisions of this Act...First, I am going to ask
questions to Mahant Naval Kishore Das Ji...Naval
ji...Why do you want a change to the provisions of this
Act?...The indication is clear...Ayodhya Jhanki
Hai...Mathura Kashi Baaki Hain...This was the slogan
of RSS, VHP and BJP...
xx xx xx
Atiq-Ur-Rehman: Amish Ji, I’m welcoming your
statements that you said you don’t want the ‘Hindu-
Muslim’ saga on the matter. And I pay respect to
Mahant Ji as well. He put his thoughts in a well-
behaved manner. The Mahant Ji raised the question;
‘a mole in the thief’s beard’ (darta wo hai jinki dadi me
tinka hota hai).
xx xx xx
Amish Devgan:
Point Number-2: You have said that with a clever
step...Atiq-Ur-Rehman Ji I’ve listened your statement,
you talked around 2-2½ inutes. You said that the verdict
on the Ayodhya case came on the board cleverly. But, I
want to refresh your memory; in the year of 1991-92
when there had the slogan for the Ayodhya in the air the
Sant Samaj, VHP, Rashtriya Swayamsevak Sangh and
authentic persons of the Hindu Samaj used to say
Ayodhya jhanki hai, Kashi-Mathura baki hai.
So the demand is very old. The wish is too old. But
when the Ayodhya’s wish was fulfilled then definitely
after that verdict you are raising the question on your
own ways. That is your take. Now I’m moving to Dr.
Sudhandhu Trivedi, Jamiat Ulema-e-Hind are saying
that if these types of petitions to be heard then thee will
be a danger to the Muslim worship places.

xx xx xx
Amish Devgan: Dr. Trivedi, you made your point. I’m
moving to Maulana Ali Kadri, he is senior guy. Kadri
Sahab; I’m asking you straight. The Saints/Pujaris/
Purohits/Mahants have a constitutional right that they
file the writ in the Supreme Court against the 1991 Act.
And they have right to talk about the Kashi and
Mathura. But, if there is the Dukan is the convcern, Dar
ki Dukan to pahle hi khol di. In that petition had said if
there was a notice on it the Muslims would feel that
their worship places were not safe. They feel fear.
Jamiat Ulema-e-Hind’s petition says then who is
opening the Dar ki Dukan. The Dar ki Dukan has
already opened. This is the constitutional right?
xx xx xx
Amish Devgan: Ali Qadri Sahab, why the Jamiat Ulema-
e-Hind is hiding its failure? Why the organisation is
saying that there will be a fear in the Muslims for their
worship places due to the notice? If you want to show
Dr. Sudhandhu Trivedi’s party’s failure and wish to
expose the RSS and VHP, then please tell in 20
seconds.
xx xx xx
Amish Devgan: Mr. Vinod Bansal, there is a symbol of
Om is showing behind you. Om, the symbol of peace.
But Maulana Ali Kadri is saying; you want to spread
Ashanti. You have defeated by corona and now seeking
a base from the Mathura-Kashi issues. After these
issues you will raise the Jama Masjid matter and Taj
Mahal will be in your hit list.
xx xx xx
Amish Devgan: Then how the Kashi-Mathura issue
came into limelight?
Vinod Bansal: There is clearly written that the 1947’s
status to be maintained. Despite of that why the
properties had transferred to the Waqf Board in a large

level? Waqf Board asked properties on the name of
Mazars, Mosques and Graveyards several times. Is all
the things are belong to their father (Ye sara inka, inke
Baap ka hai?) This is not the right way.
The first thing is, if the law had implemented, it should
complete in a shape.
And the second one is...is it not true that thousands of
the Hindu temples had demolished? The Hindu had
converted and humiliated in a large scale. There should
be needed to rectify the historical wrongs. Why they are
trying to escape from the reality.
Amish Devgan: The historical wrong should rectify.
Though several historians said the Eidgah and Krishan
Janam Bhoomi in Mathura are situated adjacent to each
other. Several historians claimed that in the 17th
century
emperor Aurangzeb had demolished a temple and had
built a mosque on the very same place. VHP’s Giriraj
Kishor also said the same thing that on the place where
the mosque is situated in Mathura, the Lord Krishnan
had birthed on the same place. Besides that, he said
several things. Now I want to move to Shadab
Chauhan. He wishes to say something. Please go
ahead.
Shadab Chauhan: Peace Party pay respect to the
Constitution of India and the social harmony. So, we
have filed the curative petition for the justice. Now we
will talk about Kashi and Mathura. After defeating from
the coronavirus, government is trying to divert the
nation’s attention by raising the issue of Kashi and
Mathura.
And now I’m saying with the challenge that there should
not be any ‘nanga-nach’ like the 1992, on the name of
worship place. We respect the 1991 law. I deeply said
that my elder brother Sudhanshu Trivedi Ji said, that the
temples which had built after August 15, 1947, will be
removed. Are you talking about demolishing the
temples? The Ram Mandir which will be constructed,
have you will demolish it as well?

And the second thing is, the Ram Mandir verdict came
on basis of the faith and we are not satisfied with the
decision. So we moved to the court. This is the matter
of justice not of any religion’s issue. Now we will not
allow any goon to insult the saffron colour. The terror
was made with demolishing the Babri Masjid.
Amish Devgan: What you said? Repeat it. The insult of
the saffron colour...we...any...what did you say?
Shadab Chaudhary: Listen...insult of the saffron colour.
We don’t allow any goon to demolish any worship place
and don’t allow kill the innocents.
Amish Devgan: No...You can’t say goons to the Sant
Samaj. I objected completely. Shadab Chauhan you
said a wrong thing. You said India’s Sant Sama/Purohit-
Pande of the country are goons.
Mahant Nawal Kishor Das: These people should
apologise. You invite such people for the debate? They
didn’t pay respect to their ancestors too. Due to the fear
they converted in the other religion.
Shadab Chauhan: They are goons.
xx xx xx
Amish Devgan: You are wrong...we do not have any
problem with Muslims...we do not have problems with
Abdul Kalam, we do not have problem with Dara Shikoh
but yes...we do have problem with
AURANGZEB...being a Hindustani we should have
problems with Aurangzeb.
xx xx xx
Maulan Qadri: I will answer Sudhandhu
Sahab...Sudhanshu has said that the Ram Mandir
decision was not merely based on faith...A few days
before today, Shivlinga got excavated there, after that I
do not want to name anything else and there was an
idol of someone there...So it should be decided if there
was a Ram temple or Jain temple, it can be

disseminated to you...the excavation says another
story...if talk about name of Shadab Chauhan or
anybody else...we are proud to said that after Khawaja
Moinuddin Chisti...a lot of Indians converted to Islam
and saw Moinuddin’s execution and converted to Islam
by seeing his life...but not all the Muslims who are in
India are converts.
Amish Devgan: Maulana sahib, you took the name of
Chishti...Now tell me, you are in today’s age, after
watching Donald Trump, he is a Christian, you will not
change your religion, will not change religion after
seeing Prime Minister Narendra Modi’s religion...
xx xx xx
Maulana Ali Qadri: Seeing the implementation of
Khwaja Moinuddin Chishti...Seeing the Talimat of Islam
that all live together, there is no inferiority...Seeing
Moinuddin’s life, people accepted Islam...
Amish Devgan: Dr. Sudhanshu Trivedi...Akranta Chishti
came...Akranta Chisti came...Lootera Chishti came after
then religion changed.
Maulana Qadri: No man accepted Islam at the edge of
the sword...He became a Muttasir from Islam and
accepted Islam by liking the teachers of Islam...I would
like to say that to you...
xx xx xx
Amish Devgan: Vinod ji, I got your point...Why Jamiat is
creating fear mongering among Muslim
community...Jamiat is creating false perception that
their place of worship is closing...
xx xx xx
Ateeq-ur-Rehman: Amish let’s discuss the Act only...in
the beginning of the show, you mentioned that Hindu-
Muslim slugfest should not happen...We are adhere to
this...Vinod Bansal is now saying that 1991 Act’s
provision should be discussed again...Is it not insult to

Parliament...The Act was passed in Parliament when
BJP was also present in the House...Why they have not
discussed this issue before Ram Mandir verdict...Why
they were silent...
Vinod Bansal: This case was in consideration before
Ram Mandir issue.
Ateeq-ur-Rehman: Amish ji...Mahant ji talking about
Hindu pride...What about Buddhist pride...
xx xx xx
Amish Devgan: I am stopping for break Sudhanshu ji
Sudhanshu ji I am staying for break but on public
demand, Shadab Chauhan will apologize after the
break...I will go to Shadab Chauhan after the break...He
will apologize to the whole saint society...I am coming
back after the break and if he don’t apologise, he will
have to get out of this debate.
xx xx xx
Amish Devgan: Yes or no...I am not giving a chance to
say yes or no...You will either apologize, your audio will
open. If you do not apologize, I will say thank
you...Thank you for coming...
Shadab Chauhan: The son of the farmer says that he...
Amish Devgan: The son of a farmer is not a matter of a
son of a farmer, it is a matter of saints...
Shadab Chauhan: I leave the debate...They are goons,
they are goons...Those who fight in the name of religion
are goons...
Amish Devgan: I will not ask for forgiveness...keep
shouting I do not matter...I will not ask for forgiveness...
Shadab Chauhan: No...Farmer’s son won’t apologise.
Amish Devgan: So get out again...You get this person
out of debates...Turn off the audio of this...I never say

that to any guest...But you spoke derogatory
words...Show this person show a full frame...You are a
foolish man...Open the audio, what is he saying...
Shadab Chauhan: And but goons will be called goons...
Amish Devgan: Apologise to the saint community...
Shadab Chauhan: I respect all religions but goons will
be called goons...
Amish Devgan: Same respect for all religions,
everybody spoke about religion...Nobody called
anything derogatory to Jamiat Ulema Hind...No one
spoke...The saints who are putting up a social petition
would be called goons...goons?..
Shadab Chauhan: There are hooligans who break
religious places...There are goons who break the
Constitution are goons who destroy the Constitution...
Amish Devgan: Shut up and get out. You are out...You
are not fit to sit in this debate. You are out...Turn these
out. Turn off the audio. Keep eating the minds of your
family...get out of here...I am asking you Qadri
sahib...the words used by Shadab Chauhan, were they
wrong or right?
Maulana Ali Qadri: See...the use of such derogatory
words for any religion is not approved by me or by
anybody...
Amish Devgan: Thanks.
Maulana Qadri: It is necessary to respect the Guru of
any religion. I believe it to be yours and it is a request
from you also that do not use the word Islamic
terrorism...because terror has no religion...
xx xx xx
Amish Devgan: Thank you very much...Mahant ji, I am
sorry, I will not be able to give more time than

this...Thank you very much...for keeping your point in
our discussion...Finally, I will always I conclude...
But in conclusion today, I want to say something that we
should respect all religions...But many people wrote that
Shadab Chauhan should not be called in this debate,
such people are abusive...See we can’t judge people
on the basis of their face...He had done wrong...we put
him out of debate...but it is very important to boycott
such people...and that’s why we boycotted them in this
debate...Namaskar...”
A. First Prayer – Whether the FIRs should be quashed?
(i) Cause of Action
13. We reject the contention of the petitioner that criminal proceedings
arising from the impugned FIRs ought to be quashed as these
FIRs were registered in places where no ‘cause of action’ arose.
Section 179 of the Criminal Code provides that an offence is triable
at the place where an act is done or its consequence ensues. It
provides:
“179. Offence triable where act is done or consequence
ensues: When an act is an offence by reason of
anything which has been done and of a consequence
which has ensued, the offence may be inquired into or
tried by a Court within whose local jurisdiction such
thing has been done or such consequence has
ensued.”
The debate-show hosted by the petitioner was broadcast on
a widely viewed television network. The audience, including the
complainants, were located in different parts of India and were

affected by the utterances of the petitioner; thus, the consequence
of the words of the petitioner ensued in different places, including
the places of registration of the impugned FIRs.
Further, clause (1) of Section 156 of the Criminal Code
provides that any officer in-charge of a police station may
investigate any cognizable case which a court having jurisdiction
over the local limits of such station would have the power to inquire
into or try. Thus, a conjoint reading of Sections 179 and 156 (1) of
the Criminal Code make it clear that the impugned FIRs do not
suffer from this jurisdictional defect.
(ii) Defence of causing slight harm
14. The petitioner has relied upon the decision of this Court in Veeda
Menez and the decision of the High Court of Delhi in Neelam
Mahajan to plead the defence of trifle under Section 95 of the
Penal Code. We are not inclined at this stage to entertain this
defence of the Petitioner. Section 95 is intended to prevent
penalisation of negligible wrongs or offences of trivial character.
Whether an act, which amounts to an offence, is trivial would
undoubtedly depend upon the evidence collated in relation to the
injury or harm suffered, the knowledge or intention with which the
offending act was done, and other related circumstances. These

aspects would be examined and considered at the appropriate
stage by the police during investigation, after investigation by the
competent authority while granting or rejecting sanction or by the
Court, if charge-sheet is filed. The present case cannot be equated
with either Veeda Menez or Neelam Mahajan’s case where the
factual matrix was undisputed and admitted. It would be wrong and
inappropriate in the present context to prejudge and pronounce on
aspects which are factual and disputed. The ‘content’ by itself
without ascertaining facts and evidence does not warrant
acceptance of this plea raised by the petitioner. The defence is left
open, without expressing any opinion.
(iii) Hate Speech
15. Benjamin Franklin, in 1722, had stated:
“Without Freedom of Thought, there can be no such
Thing as Wisdom; and no such Thing as public
Liberty, without Freedom of Speech; which is the
Right of every Man, as far as by it, he does not hurt or
control the Right of another; And this is the only
Check it ought to suffer, and the only Bounds it ought
to know.”
Two centuries later it remains difficult in law to draw the outmost
bounds of freedom of speech and expression, the limit beyond
which the right would fall foul and can be subordinated to other
democratic values and public law considerations, so as to

constitute a criminal offence. The difficulty arises in ascertaining
the legitimate countervailing public duty, and in proportionality and
reasonableness of the restriction which criminalises written or
spoken words. Further, criminalisation of speech is often
demarcated and delineated by the past and recent significant
events affecting the nation including explanation of their causes.
Therefore, constitutional and statutory treatment of ‘hate speech’
depends on the values sought to be promoted, perceived harm
involved and the importance of these harms.57
Consequently, a
universal definition of ‘hate speech’ remains difficult, except for one
commonality that ‘incitement to violence’ is punishable.
16. This Court in 2014, in Pravasi Bhalai Sangathan had requested
the Law Commission of India to examine the possibility of defining
the expression ‘hate speech’, and make recommendations to the
Parliament to curb this menace, especially in relation to electoral
offences. This Court had expressed difficulty in ‘confining the
prohibition to some manageable standard’. The Law Commission,
in its 267th
Report on Hate Speech had recommended
amendments to the criminal laws for inserting new provisions
prohibiting incitement to hatred and causing fear, alarm, or
57
Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel Rosenfeld, 24
Cardozo L. Rev. 1523 2002-2003

provocation of violence in certain cases, but these have not yet
been accepted by the government. Referring to the Constituent
Assembly Debates and the Constitution, the Report observes that
the right to speech was not to be treated as absolute, but subject
to restrictions on the grounds like sedition, obscenity, slander, libel
and interest of public order. If the State is denied power to restrict
speech on the basis of content, it might produce debates informed
by prejudices of the public that would marginalise vulnerable
groups and deny them equal space in the society. The mode of
exercise of free speech, the context and the extent of abuse of
freedom are important in determining the contours of permissible
restrictions. The Commission also felt that laying down of a definite
standard might lead to curtailment of free speech; a concern that
has prevented the judiciary from defining hate speech in India.
However, this is not to deny that the courts while adjudicating each
case have to inevitably apply an objective test in terms of the
legislative provisions. This is an inescapable legal necessity to
ensure certainty and to prevent abuse and misuse, as failure to do
so would curtail and subjugate the right to free speech and
expression to occasional whims and even tyranny of subjective
understanding of the authorities. Difference between free speech

and hate speech in the context of the penal law must be
understood.
17. The Law Commission report analysed the legal standards under
various instruments of international law that lay down the regime
for controlling and preventing hate speech, which we will
encapsulate. Article 20(2) of the International Covenant on Civil
and Political Rights, 1966 (ICCPR) prohibits ‘advocacy of national,
racial or religious hatred that constitutes incitement to
discrimination, hostility or violence’. Similarly, Articles 4 and 6 of
the International Convention on the Elimination of All Forms of
Racial Discrimination, 1966 (CERD), prohibits ‘dissemination of
ideas based on racial superiority or hatred, incitement to racial
discrimination as well as all acts of violence or incitement to such
acts against any race or group of persons of another colour or
ethnic origin…’. The Human Rights Council’s Report of the Special
Rapporteur on the Promotion and Protection of the Right to
Freedom of Opinion and Expression, in the context of internet
content, states that freedom of expression can be restricted on
grounds like hate speech (to protect rights of affected
communities), defamation (to protect the rights and reputation of
individuals against unwarranted attacks), and ‘advocacy’ of

national, racial or religious hatred that constitutes incitement to
discrimination, hostility or violence (to protect the rights of others).
Article 10 of the European Convention of Human Rights
guarantees the right to freedom of expression, subject to certain
‘formalities, conditions, restrictions or penalties’ in the interest of …
public safety, for the prevention of disorder or crime… for the
protection of the reputation or rights of others…’. Further, Article 17
of the Convention prohibits abuse of the right by ‘any State, group
or person’. The Council of Europe’s Committee of Ministers to
Member States on Hate Speech has defined ‘Hate Speech’ as
‘covering all forms of expression which spread, incite, promote or
justify racial hatred, xenophobia, anti-Semitism or other forms of
hatred based on intolerance, including: intolerance expressed by
aggressive nationalism and ethnocentrism, discrimination and
hostility against minorities, migrants and people of immigrant
origin.’ The Law Commission report notes that pluralism, tolerance,
peace and non-discrimination have been termed non-derogatory
values by the European Court of Human Rights in ascertaining the
extent of free speech allowed under the Convention; speech
propagating religious intolerance, negationism, homophobia etc.
has been excluded from the ambit of Article 10 of European
Convention of Human Rights and the importance of responsible

speech in a multicultural society has been stressed by the court in
several cases. The Law Commission report has noted that in
recent years, the European Court of Human Rights has moved
from a strictly neutral approach, wherein not every offensive
speech was considered illegitimate, by holding that interference is
not to be solely judged on legitimate aim test but also whether
such interference was necessary in a democratic society. This
moderation takes into account that affording protection to all kinds
of speech, even offensive ones, many times vilifies the cause of
equality.
18. We will now succinctly refer to the American position which
discloses a strong preference for liberty over equality, and
commitment to individualism, predicated on the belief that:
“...Truth was definite and demonstrable and that it had
unique powers of survival when permitted to assert
itself in a “free and open encounter.” [...] Let all with
something to say be free to express themselves. The
true and sound will survive; the false and unsound will
be vanquished. Government should be kept out of the
battle and not weigh the odds in favor of one side or
the other. And even though the false may gain a
temporary victory, that which is true, by drawing to its
defence additional forces, will through the self-righting
process ultimately survive.”58
58
Frederick Siebert writing on John Milton’s Areopagitica, 1644, in The Libertarian Theory of the
Press, in FOUR THEORIES OF THE PRESS 39, 44-45

19. The American framework on hate speech is based upon four major
philosophical justifications.59
Justification from democracy is based
on the belief that free speech enables a democratic self-
government by allowing citizens to convey and receive ideas. This
rationale does not grant protection to speech that is anti-
democratic in general, and hateful or political extremist in
particular. Another justification comes from the social contract
theory, which requires that ‘fundamental political institutions must
be justifiable in terms of an actual or hypothetical agreement
among all members of the relevant society.’ The third justification –
pursuit of the truth, is based on the utilitarian philosophy. Popularly
known as the justification based on ‘free marketplace of ideas,’ it is
grounded in the notion that truth is more likely to prevail through
open discussion, and that the society will be better able to
progress if the government is kept out of adjudicating as to what is
true or false, valid versus invalid, or acceptable against abhorrent.
The fourth justification comes from the idea of autonomy, and is
primarily individualistic, unlike the previous three that value
collective good. According to this, free speech enables individual
autonomy, respect and well-being through self-expression.
59
“Justification from democracy, the justification from social contract, the justification from the pursuit
of the trust, and the justification from individual autonomy.” – Cardozo L.Rev.1523 2002-2003
(HeinOnline).

20. The threshold or the standard in American jurisprudence to
determine the circumstances under which the First Amendment
freedoms of speech, press and assembly should be restricted has
with time moved from the ‘bad tendency test’ i.e., prohibiting
speech if it has tendency to harm public welfare, to the test of
‘clear and present danger’,60
and to finally the test of ‘imminent
lawless action’. Mr. Justice Douglas in his concurring opinion in
Brandenburg v. Ohio61
had adumbrated that the ‘clear and
present danger’ precept in pronouncements during World War I
and to check Marxism had moved away from the First Amendment
ideal as in Dennis v. United States62
‘not improbable’ standard
was followed. The ‘imminent lawless action’ test has three distinct
elements, namely – intent, imminence and likelihood. In other
words, the State cannot restrict and limit the First Amendment
protection by forbidding or proscribing advocacy by use of force or
law, except when the speaker intends to incite a violation of the
law – that is both imminent and likely.
60
Mr. Justice Holmes in Schenek v. United States, 249 U.S. 47 (52), has described the test as:
“The question in every case is whether the words used are used in
such circumstances and are of such a nature as to create a clear and
present danger that they will bring about the substantive evils that
Congress has a right to prevent. It is a question of proximity and
degree.”
61
395 U.S. 444 (1969)
62
341 U.S. 494

21. Michel Rosenfeld in his essay63
states that primary function of free
speech has taken different forms in four historical stages. The first
stage, dating back to the War of Independence, established
protection of people against the government as the dominant
function of free speech. In the second stage, as democracy
became entrenched in the USA, free speech was meant to protect
proponents of unpopular views against the tyranny of the majority.
Stage three, panning between mid-1950s to 1980s when there
was widespread consensus on essential values, saw the main
function of free speech shift from lifting restraints on speakers to
ensuring that listeners remain open-minded. Finally, with the rise of
alternative discourses such as feminist and critical race theories
attacking mainstream and official speech as inherently oppressive,
the primary role of free speech became the protection of
oppressed and marginalised discourses against the hegemony of
discourses of the powerful. Accordingly, there are suggestions that
‘imminent lawless action’ fails to take into consideration and is
prone to undermine the autonomy or self-respect of those whom
the hate speech targets. Critics emphasise on the threat posed by
unconstrained speech by the hegemony of dominant discourses at
the expense of discourses of others, which as a result may only
63
‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ by Michel Rosenfeld, 24
Cordozo L. Rev. 1523 2002-2003

exacerbate the other’s humiliation and denial of self-respect and
autonomy. Counter approach reflects on the impact of hate speech
on target and non-target audiences. The targeted audiences could
experience anger, fear, concern and alienation. The non-targeted
audiences may have different experiences from reversion to mixed
emotions to downright sympathy for the substance of the main
hate message, if not the form. This has long-term effects even on
the non-targeted audiences, as even when they do not agree, they
tend to accept as normal the message of hate over a period of
time.
22. The Canadian jurisprudence on the subject proceeds on the basis
of inviolability of human dignity as its paramount value and
specifically limits the freedom of expression when necessary to
protect the young and the right to personal honour. Canadian
approach emphasises on multiculturalism and group equality, as it
places greater emphasis on cultural diversity and promotes the
idea of ethnic mosaic. The Canadian Supreme Court in James
Keegstra had upheld the criminal conviction of a high school
teacher for anti-Semitic propaganda on the ground that it amounts
to wilful promotion of hatred against a group identifiable on the

basis of colour, race, religion or ethnic origin. It was observed as
under:
“(1) seeking and attaining truth is an inherently good
activity; (2) participation in social and political
decision-making is to be fostered and encouraged;
and (3) diversity in forms of individual self-fulfillment
and human flourishing ought to be cultivated in a
tolerant and welcoming environment for the sake of
both those who convey a meaning and those to whom
meaning is conveyed.”
The Canadian position, therefore, considers the likely impact
of hate speech on both the targeted groups and non-targeted
groups. The former are likely to be degraded and humiliated to
experience injuries to their sense of self-worth and acceptance in
the larger society and may well, as a consequence, avoid contact
with members of the other group within the polity. The non-targeted
members of the group, sometimes representing society at large,
on the other hand, may gradually become de-sensitised and may
in the long run start accepting and believing the messages of hate
directed towards racial and religious groups. These insidious
effects pose serious threats to social cohesion rather than merely
projecting immediate threats to violence. Dixon, C.J., in Canada
(Human Rights Commission) v. Taylor,64
had observed:
“...messages of hate propaganda undermine the
dignity and self-worth of targeted group members
and, more generally, contribute to disharmonious
64
(1990) 3 SCR 892

relations among various racial, cultural and religious
groups, as a result eroding the tolerance and open
mindedness that must flourish in a multicultural
society which is committed to the idea of equality.”
23. Saskatchewan (Human Rights Commission) had laid down
three tests to determine whether an expression could qualify as
hate speech or not. First, courts must apply the hate speech
prohibitions objectively by applying the test of a reasonable
person. Secondly, the legislative term ‘hatred’ or ‘hatred or
contempt’ must be interpreted to mean the extreme form of the
emotions, i.e. detestation and vilification. Thirdly, the effect of the
expression on the targeted group should be determined by the
Court. Canadian laws attempt to restrict false and discriminatory
statements that are likely to lead to breach of peace. In R. v.
Zundel the Court observed that publishing and spreading false
news that was known to be false is likely to cause injury to public
interest and multiculturalism.
24. In Australia, the position of law is substantially aligned with that in
Canada. The Australian Federal Court, in the case of Pat Eatock
v. Andrew Bolt65
followed the dictum in Keegstra in holding that
the right to freedom of expression could be restricted vide
legislation which made racial hatred a criminal offence. The
65
(2011) FCA 1103

Federal Court quoted with approval the observations in Keegstra
that had examined and rejected the underlying rationale theory, to
hold:
(a) The justification from pursuit of truth does not support the
protection of hate propaganda, and may even detriment our
search for truth. The more erroneous or mendacious a
statement, the less its value in the quest of truth. We must
not overemphasise that rationality will overcome all
falsehoods.
(b) Self-fulfilment and autonomy, in a large part, come from
one’s ability to articulate and nurture an identity based on
membership in a cultural or religious group. The extent to
which this value furthers free speech should be modulated
insofar as it advocates an intolerant and prejudicial disregard
for the process of individual self-development and human
flourishing.
(c) The justification from participation in democracy shows a
shortcoming when expression is employed to propagate
ideas repugnant to democratic values, thus undermining the
commitment to democracy. Hate propaganda argues for a
society with subversion of democracy and denial of respect
and dignity to individuals based on group identities.

25. The South African position regards dignity as paramount
constitutional value and the law and the courts are willing to
subjugate freedom of expression when the latter sufficiently
undermines the former. The constitutional provision, therefore,
enjoins the legislature and the court to limit speech rights and the
exercise of those rights which deprive others of dignity.
26. The position in the United Kingdom has shifted over the years from
reinforcing the security of the government to checking incitement
to racial hatred among non-target audience with the aim of
protecting targets against racially motivated harassment. The Race
Relations Act, 1965 makes it a crime to utter in public or publish
words ‘which are threatening, abusive or insulting’ and which are
intended to incite hatred on the basis of race, colour or national
origin. The Act focuses on ‘incitement to hatred’ rather than
‘incitement to violence’ but requires proof of intent for conviction. It
also distinguishes between free speech and protects expression of
political position but checks and criminalises illegal promotion of
hate speech on basis of race, colour or national origin.66
66
‘Hate Speech in Constitutional Jurisprudence: A Comparative Analysis’ by Michel Rosenfeld, 24
Cordozo L. Rev. 1523 2002-2003

27. Germany, on the other hand, and by contrast, believes that
freedom of expression is one amongst several rights which is
limited by principles of equality, dignity and multiculturalism.
Further, value of personal honour always triumphs over the right to
utter untrue statements or facts made with the knowledge of their
falsity. If true statements of fact invade the intimate personal
sphere of an individual, the right to personal honour triumphs over
the freedom of speech. If such truth implicates the social sphere,
the court once again resorts to balancing. Finally, if the expression
of opinion as opposed to a fact constitutes a serious affront to the
dignity of a person, the value of person however triumphs over the
speech. But if damage to reputation is slight, then again, the
outcome of the case will depend on careful judicial balancing.
Therefore, German application strikes a balance between rights
and duties, between the individual and the community and
between the self-expression needs of the speaker and the self-
respect and dignity of the listeners. It recognises the content-
based speech regulation. It also recognises the difference between
fact and opinion.67
67
See Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel Rosenfeld, 24
Cardozo L. Rev. 1523 2002-2003.

28. The United States and France saw birth of democracy vide 18th
century revolutions that strove to guarantee rights to individuals.
However, the situations were quite different. In France, the
revolution sought to limit, if not abolish – the prerogatives of rich
and powerful catholic church. The French Parliament defined
‘religious freedom’ in individual terms and in August, 1789 adopted
the declaration des Droits de l’Homme et du Citoy en, which
declared – ‘no one may be disturbed for his opinions, even
religious ones, provided that their manifestation does not trouble
the public order established by the law’. In 1905, Declaration of
Laïcité, freedom of conscience, the freedom to believe or not
believe, was enshrined in the Constitution. The principle
recognises freedom to practice religion, in private or in public, as
long as the manifestation of the practice does not disturb the
peace. The State guarantees equality to all citizens regardless of
their philosophical or religious conviction as all persons are born
and remain free and equal in right. Everyone is free to express
their own particular convictions and adhere to it. Laïcité
confederates and reinforces the unity of the nation by bringing
citizens together by adhering to values of the republic which
includes the right to accept differences.68
In accordance with the
68
Declaration for Laïcité – Observatoire de la laicite (Republique Francaise)

above principle, the French recognise and accept the right to
offend as an essential corollary to freedom of expression which
should be defended or upheld by other means, than by causing an
offence. France does have hate speech laws against racism and
xenophobia, which includes anti-religious hate crimes, to protect
groups and individuals from being defamed or insulted on the
ground of nationality, race, religion, ethnicity, sex, sexual
orientation, gender identity or because they have a handicap.
However, the French law gives primacy to freedom of expression,
which it believes is meaningless without the right to offend, which
would to some not only include the right to criticise and provoke
but also the right to ridicule when it comes to ideas and beliefs,
including religious beliefs.
29. Andrew F. Sellars, in his essay ‘Defining Hate Speech’69
has
examined the concept of hate speech in different democratic
jurisdictions, and refers to attempts to define ‘hate speech’ by
scholars and academics, including Mari J. Matsuda, Mayo Moran,
Kenneth D. Ward, Susan Benesch, Bhikhu Parekh and others. The
Author has formulated common traits in defining ‘hate speech’
observing that this would be helpful and relevant in considering
69
Andrew F. Sellers, Defining Hate Speech, published by Berkman Klein Center for Internet & Society
at Harvard University

how the society should respond. These can be categorised as
follows:
(a) Hate speech targets a group, or an individual as a member
of the group. The word ‘group’ has been traditionally used with
reference to historically oppressed, traditionally disadvantaged or
minority, but some prefer not to look for a defined group but to see
whether the speaker targets someone based on an arbitrary or
normatively irrelevant feature. The expression ‘group’ would
include identification based upon race, ethnicity, religion, gender,
sexual orientation, sexual identity, appearance, physical ability,
etc.;
(b) Content of the message should express hatred. Hostility
towards a group in the spoken words reflects the intent of the
speaker. One should be able to objectively identify the speech as
an insult or threat to the members of the targeted group, including
stigmatising the targeted group by ascribing to it qualities widely
disregarded as undesirable;
(c) Speech should cause harm, which can be physical harm
such as violence or incitement and true threats of violence and can
include deep structural considerations caused by silent harm
because of the victim’s desperation that they cannot change the
attribute that gives rise to hatred. The speech could permeate and

impact the victim’s relationship with others, cause denial of oneself
and result in structural harms within the society;
(d) Intent of the speaker to cause harm or other bad activity to
most is an essential feature of hate speech. In some statutes it can
be even tacit inherent component. However, what the speaker
should intend to constitute hate speech is subject to varied
positions. Intent may refer to non-physical aspects like to demean,
vilify, humiliate, or being persecutorial, disregarding or hateful, or
refer to physical aspects like promoting violence, or direct attacks.
However, speakers can lie about their intent not only to others but
to themselves. Intent may be disguised and obscured;
(e) Speech should incite some other consequence as a result of
the speech. Incitement could be of non-physical reactions such as
hatred, or physical reactions such as violence. Certain jurisdictions
require that the incitement should be imminent or almost inevitable
and not too remote;
(f) Context and occasion of the speech is important. This
requirement means looking into the factors such as the power of
the speaker, place and occasion when the speech was made, the
receptiveness of the audience and the history of violence in the
area where the speech takes place. It requires examination
whether the statement was made in the public to the view of the

targeted group as an undesirable presence and a legitimate object
of hostility. In certain contexts, at ‘home speeches’ may
themselves amount to hate speeches as the said speeches are
now uploaded and circulated in the virtual world through internet
etc.; and lastly
(g) Speech should have no redeeming purpose, which means
that ‘the speech primarily carries no meaning other than hatred
towards a particular group’. This is necessarily subjective and
requires examination of good faith and good motives on the part of
the speaker. ‘No legitimate purpose’ principle being abstract has
difficulties, albeit is well documented. ‘Good faith’ and ‘no
legitimate purpose’ exclusions are accepted as a good exception.
C. Decisions of this Court and High Courts interpreting Article
19(1)(a) and 19(2) of the Constitution, and Sections 153A,
295A and clause (2) of Section 505 of the Penal Code
30. In Ramji Lal Modi, a Constitution Bench of five Judges, relying
upon the earlier decisions in Romesh Thappar and Brij Bhushan,
had upheld the constitutional validity of Section 295A, a provision
which criminalises the act of insulting religious beliefs with the
deliberate intention to outrage religious feelings of a class of
citizens. Ruling that the right to free speech is not absolute as
Article 19(2) of the Constitution envisages reasonable restrictions,

this court observed that the phrase ‘public order’, as a ground for
restricting the freedom of speech, incorporated in Article 19(2)
vide the Constitution (First Amendment) Act, 1951 with
retrospective effect, reads ‘in the interest of public order’, which
connotes a much wider import than ‘maintenance of public order’.
This distinction between ‘maintenance of public order’ and ‘in the
interest of public order’ was reiterated by another Constitution
Bench of five Judges of this Court in Virendra/K.Narendra.
31. Even so, in Ramji Lal Modi Section 295A of the Penal Code was
interpreted punctiliously observing:
“9...Section 295-A does not penalise any and every act
of insult to or attempt to insult the religion or the
religious beliefs of a class of citizens but it penalises
only those acts of insults to or those varieties of
attempts to insult the religion or the religious beliefs of a
class of citizens, which are perpetrated with the
deliberate and malicious intention of outraging the
religious feelings of that class...”
Import of Section 295A of the Penal Code, Ramji Lal Modi
holds, is to curb speech made with ‘malicious intent’ and not
‘offensive speech’. Criminality would not include insults to religion
offered unwittingly, carelessly or without deliberate or malicious
intent to outrage the religious feelings. Only aggravated form of
insult to religion when it is perpetuated with deliberate and
malicious intent to outrage the religious feelings of that group is

punishable. Notably, this court had already dismissed the Special
Leave Petition and upheld Ramji Lal Modi’s conviction under
Section 295A for having published an article in a magazine against
Muslims. It was specifically noticed that even earlier, the journalist
in question had printed and published an article or a cartoon about
a donkey on which there was agitation by Muslims in Uttar
Pradesh, which after prosecution, however, had eventually
resulted in petitioner’s acquittal by the Allahabad High Court.
32. In Kedar Nath Singh, a Constitution Bench of five Judges of this
Court had interpreted Sections 124A and 505 of the Penal Code
post amendment to clause (2) to Article 19 of the Constitution
widening its ambit by incorporating the words- ‘in the interest of’ …
‘public order’. Reference was made to the difference in approach
and interpretation by Sir Maurice Gwyer, C.J., speaking for the
Federal Court in Niharendu Dutt Majumdar and the decision of
the Privy Council in Sadashiv Narayan Bhalerao, which had
approved the elucidation by Strachey, J. in Bal Gangadhar Tilak.
This court held that the exposition of law by the Federal Court in
Niharendu’s case would be apposite and in conformity with the
amended clause (2) of Article 19. Specific reference was made to
the dissenting opinions of Fazl Ali, J., in Romesh Thappar and

Brij Bhushan, to observe that the difference between the majority
opinion in the two cases and the minority opinion of Fazl Ali, J. had
prompted the Parliament to amend clause (2) of Article 19 by the
Constitution (First Amendment) Act, 1951 with retrospective effect.
Fazl Ali, J. had held that the concept of ‘security of state’ was very
much allied to the concept of ‘public order’ and that restrictions on
the freedom of speech and expression could validly be imposed in
the interest of public order. At the same time, this court had
cautioned that the two penal provisions, read as a whole together
with the explanation, aim at rendering penal only those activities
which would be intended, or have the tendency, to create disorder
or disturbance of public peace by resort to violence. It was
elutriated that criticism and comments on government’s action in
howsoever strong words would not attract penal action as they
would fall within the fundamental right of freedom of speech and
expression. The penal provisions catch up when the word, written
or spoken etc., have the pernicious tendency or intention of
creating public disorder. So construed, the two provisions strike the
correct balance between individual fundamental rights and the
interest of public order. For interpretation, the court should not only
have regard to the literal meaning of the words of the statute but

take into consideration the antecedent history of the legislation, its
purpose and the mischief it seeks to suppress.
33. With reference to Section 505 of the Penal Code, Kedar Nath
Singh observes that each of the three clauses of the Section refer
to the gravamen of the offence as making, publishing or circulating
any statement, rumour or report – (a) with the intent of causing or
which is likely to cause any member of the Army, Navy or Air Force
to mutiny or otherwise disregard or fail in his duty as such; or (b)
cause fear or alarm to the public or a section of the public which
may induce the commission of an offence against the State or
against public tranquillity; or (c) incite or which is likely to incite one
class or community of persons to commit an offence against any
other class or community. Constituent elements of each of the
three clauses have reference to the direct effect on the security of
the State or public order. Hence, these provisions would not
exceed the bounds of reasonable restriction on the right to
freedom of speech and expression.
34. We have referred to the judgment in Kedar Nath Singh, for it
interprets clause (2) of Section 505 of the Penal Code and also
lays down principles and guidelines to interpret a penal provision in
the context of the fundamental right to freedom of speech and

expression. Secondly, and more importantly, this decision affirms
the view of the Federal Court in Niharendu’s case that the
expression ‘government established by law’ has to be
distinguished from the ‘persons for the time being engaged in
carrying on the administration’. The former is the visible symbol of
the State, which gets enwrapped when the very existence of the
State will be in jeopardy if the government established by law is
subverted. Written or spoken words etc. that bring the State into
contempt or hatred or create disaffection fall within the ambit of the
penal statute when the feeling of disloyalty to the government
established by law or enmity to it imports the idea of tendency to
public disorder by use of actual violence or incitement to violence.
Equally, strongly worded expression of disapprobation of the
actions of the government, even elected government, without
exciting those feelings which generate the inclination to cause
public disorder by acts of violence would never be penal. Further,
disloyalty to the government by law and comments even in strong
terms on the measures or acts of the government so as to
ameliorate the condition of the people or to secure cancellation or
alteration of those actions or measures by lawful means, without
exciting of those feelings of enmity and disloyalty which imply
excitement to public disorder or use of force, is not an offence.

Another significant advertence is to the principle that recognises
that if two views are possible, the court should construe the
provisions of law penalising ‘hate speech’ in the way that would
make them consistent with the Constitution, and an interpretation
that would render them unconstitutional should be avoided.
Interpreting the sections under challenge, the provisions were read
as a whole to make it clear that the aim is to render penal only
such activities as would be intended, or have a tendency, to create
public disorder or disturbance of public peace by resort to violence.
As a sequitur it follows that the courts should moderate and control
the ambit and scope of the penal provisions to remain within and
meet the constitutional mandate. Interpretation and application that
is distant and beyond the superior command of the permissible
constitutional limitation vide clause (2) to Article 19 is
unacceptable.
35. The decision in Ramji Lal Modi and the later decision in Bilal
Ahmed Kaloo, which had examined Sections 153A and 505(2) of
the Penal Code, had primarily applied the ‘Bad Tendency test’ as
propounded by the American jurists. In Dr. Ram Manohar Lohia,
the Constitution Bench of five Judges, referring to the words ‘in the
interest of… public order’ in clause (2) to Article 19 had observed

that order is a basic need in any organised society. It implies
orderly state of society or community in which the citizens can
peacefully pursue their normal activities of life. This is essential as
without order there cannot be any guarantee of other rights.
Security of the State, public order and law and order represent
three concentric circles: law and order being the widest, within
which is the next circle representing public order and the smallest
circle represents the security of the State. The phrase ‘security of
the State’ is nothing less than endangering the foundations of the
State or threatening its overthrow. It includes events that have
national significance or upheavals, such as revolution, civil strife,
war, affecting security of the State but excludes breaches of purely
local significance. The phrase ‘minor breaches’ refers to public
inconvenience, annoyance or unrest. The phrase ‘in the interest
of...public order’, in the context of clause (2) to Article 19, would
mean breaches of purely local significance, embracing a variety of
conduct destroying or menacing public order. Public order, in view
of the history of the amendment is synonymous with public peace,
safety and tranquillity. Further, any restriction to meet the mandate
of clause (2) to Article 19 has to be reasonable, which means that
the restriction must have proximate and real connection with public
order but not one that is far-fetched, hypothetical, problematic or

too remote in the chain of its relationship with public order.
Restriction must not go in excess of the objective to achieve public
order. In practice the restriction to be reasonable, should not
equate the actus with any remote or fanciful connection between a
particular act of violence or incitement to violence. This Court
upheld the decision of the Allahabad High Court striking down
Section 3 of the U.P. Special Powers Act, 1932 as the section
within its wide sweep had included any instigation by words, signs
or visible representation not to pay or defer payment of any
extraction or even contractual dues of the government authority,
land owner, etc. which was treated as an offence. Even innocuous
speeches were prohibited by threat of punishment. It was
observed there was no proximate or even foreseeable connection
between such instigation and the public order sought to be
protected. Similarly, the argument of the State that instigation of a
single individual in the circumstances mentioned above may in
long run ignite revolutionary movement and destroy public order
was rejected on the ground that fundamental rights cannot be
controlled on such hypothetical and imaginary considerations. The
argument that in a democratic society there is no scope for
agitational approach and the law, if bad, can be modified by
democratic process alone was rejected on the ground that if the

same is accepted it would destroy the right to freedom of speech.
However, what is important is the finding that public order is
synonymous with public safety and tranquillity, in the sense that
the latter terms refer to the former. The terms refer to absence of
disorder, involving breaches of local significance in contradiction to
national upheavals affecting security of the State. Yet they have be
serious enough like civil strife and not mere law and order issues.
Further, the ‘proximate nexus test’ in the ‘interest of public order’
should be satisfied.
36. In Madhu Limaye v. Sub-Divisional Magistrate, Monghyr and
Others,70
a seven Judge Constitution Bench of this Court has
rejected challenge to the constitutional validity of Section 144 and
Chapter VIII of the Code of Criminal Procedure, 1873 holding that
the impugned provisions properly understood were not in excess
of the limits laid down in the Constitution for restricting the
freedoms guaranteed under Article 19(1) clauses (a), (b), (c) and
(d). The Constitution Bench was required to interpret clauses (2),
(3), (4) and (5) to Article 19 and whether the provision under
challenge when interpreted would be protected in the sense that
they would fall within the ‘interest of ..public order’ occurring in
clauses (2), (3) and (4) and ‘interest of.. general public’ occurring in
70
(1970) 3 SCC 746

clause (5). Noticing that the phrase ‘in the interest of …public
order’, enacted with retrospective effect vide the First Amendment
in 1951, has been interpreted as expanding the scope of
restrictions, which was earlier restricted to aggravated activities
calculated to endanger the security of the State only, reference
was made to the decision in Dr. Ram Manohar Lohia which had
also quoted judgments of the Supreme Court of the United States
in which it had been held that public order is synonymous with
public peace, safety and tranquillity. Hidayatullah, C.J., however,
observed that the terms ‘public order’ and ‘public tranquillity’ do
overlap to some extent but are not always synonymous as ‘public
tranquillity’ is a much wider expression and it’s breach may even
include things that cannot be described as public disorder. ‘Public
order’ no doubt requires absence of disturbance of state of
serenity in society but goes further and means ordre publique, a
French term which means absence of insurrection, riot, turbulence
or cry of violence. The expression ‘public disorder’ includes all acts
which endanger the security of the State as also acts which are
comprehended by the expression ordre publique but not acts
which disturb only the serenity of others. For breach of public
order, it is not necessary that the act should endanger the security
of the State, which is a far stricter test, but would not include every

kind of disturbance of society. Accepting that ‘law and order’
represents the largest circle within which is the next circle
representing ‘public order’ and inside that the smallest circle
representing the ‘security of the State’ is situated, it was observed
that State is at the centre and the society surrounds it.
Disturbances of society can fall under broad spectrum ranging
from disturbance of serenity of life to jeopardy of the State.
Therefore, the journey travels first through public tranquillity then
through public order and lastly to the security of the State.
Interpreting the requisites of Section 144, it was held that it was
meant and concerned with power with the State to free the society
from the menace of serious disturbances of grave character, that is
to say that the annoyance must assume sufficiently grave
proportions to bring the matter within the interest of public order.
Rejecting the contention that the language of Section 144 was
overbroad, reference was made to Section 188 of the Penal Code
to hold that mere disobedience of the order is not sufficient to
constitute an offence; there must be in addition obstruction,
annoyance, or danger to human life, health or safety or a riot or an
affray for an offence to me made out under the penal provision.
Thus, the offence under Section 188 of the Penal Code is
restricted and confined by the legislative mandate. The general

order under Section 144 is justified on the ground that it may be
necessary when number of persons is so large that distinction
between them and general public cannot be made without the risk
mentioned in the section. A general order is thus justified, and if
the action is too general, the order may be questioned by
appropriate remedy provided in the Criminal Code.
37. Recently, this Court in Shreya Singhal, accepting the
constitutional challenge and striking down Section 66A of the
Information Technology Act, 2000, had differentiated between
categories and adopted the scales test when offensive speech
would be criminalised, observing:
“13...There are three concepts which are fundamental
in understanding the reach of this most basic of human
rights. The first is discussion, the second is advocacy,
and the third is incitement. Mere discussion or even
advocacy of a particular cause howsoever unpopular is
at the heart of Article 19(1)(a). It is only when such
discussion or advocacy reaches the level of incitement
that Article 19(2) kicks in. It is at this stage that a law
may be made curtailing the speech or expression that
leads inexorably to or tends to cause public disorder or
tends to cause or tends to affect the sovereignty and
integrity of India, the security of the State, friendly
relations with foreign States, etc...”
This judgment relies upon the American principles of ‘clear
and present danger’ and ‘imminent lawless action’ wherein to
criminalise speech, proximate nexus should be established, that is,

causal linkage between the words spoken with the ‘clear and
present danger’ and ‘imminent lawless action’.
38. In Shreya Singhal, this Court has struck down Section 66A of the
Information Technology Act on various grounds, including
unreasonableness of the restriction, absence of requirements of
clause (2) to Article 19, including public order; having chilling effect
and over-breadth; vagueness etc. Referring to the public order
aspect of clause (2) of Article 19 and the reasonable restriction
mandate, it was observed that they connote limitation on a person
in enjoyment of the right, and should not be arbitrary and
excessive in nature, beyond what is required by the specific clause
applicable in the said case. Reference was made to several
judgments, including Chintaman Rao v. State of Madhya
Pradesh,71
State of Madras v. V.G. Row,72
N.B. Khare (Dr.) v.
State of Delhi73
and Mohammed Faruk v. State of Madhya
Pradesh and Others,74
to hold that the reasonable restriction test
must be satisfied both in substantive and in procedural aspects.
This test of reasonableness should be applied to each individual
impugned statute, as no abstract standard or general pattern of
reasonableness is applicable to all cases. Reasonableness always
71
AIR 1951 SC 118
72
AIR 1952 SC 196
73
AIR 1950 SC 211
74
(1969) 1 SCC 853

has reference to evil sought to be remedied and requires
examination of the proportion of the imposition.
39. In Shreya Singhal, to exposit the public order stipulation in clause
(2) of Article 19, reference was made to Arun Ghosh v. State of
West Bengal75
wherein the test as laid down in Dr. Ram Manohar
Lohia was applied to hold that public order would embrace more
of the community than law and order. Public order refers to the
even tempo of the life of the community taking the country as a
whole or even a specified locality. Disturbance of public order is to
be distinguished from the acts directed against individuals which
do not disturb the society to the extent of causing general
disturbance of public tranquillity. This was explained by way of
examples:
“3...Take for instance, a man stabs another. People may
be shocked and even disturbed, but the life of the
community keeps moving at an even tempo, however
much one may dislike the act. Take another case of a
town where there is communal tension. A man stabs a
member of the other community. This is an act of a very
different sort. Its implications are deeper and it affects
the even tempo of life and public order is jeopardized
because the repercussions of the act embrace large
sections of the community and incite them to make
further breaches of the law and order and to subvert the
public order. An act by itself is not determinant of its
own gravity. In its quality it may not differ from another
but in its potentiality it may be very different...
75
(1970) 1 SCC 98

...It means therefore that the question whether a man
has only committed a breach of law and order or has
acted in a manner likely to cause a disturbance of the
public order is a question of degree and the extent of
the reach of the act upon the society. The French
distinguish law and order and public order by
designating the latter as order publique...”
In Arun Ghosh, it was held that a line of demarcation has to
be drawn between serious and aggravated forms of breaches of
public order which affect life of the community or forms of breaches
of public order which endanger the public interest at large, from
minor breaches of peace which do not affect the public at large.
Acts directed against individuals which do not disturb the society to
the extent of causing a general disturbance of public tranquillity do
not subvert public order, but are law and order issues. Referring to
Dr. Ram Manohar Lohia’s case, it was observed that similar acts
in different context may affect law and order in one case and public
order in the other. It is always the degree of harm and its effect on
the community. The test which is to be examined in each case is
whether the act would lead to disturbance of the current life of the
community so as to amount to disturbance of public order, or does
it affect merely an individual leaving the tranquillity of the society
undisturbed. The latter is not covered under and restriction must
meet the test of ordre publique affecting the community in the
locality.

40. In Anuradha Bhasin v. Union of India and Others,76
this Court,
while dealing with the suspension of internet services in the area of
Jammu and Kashmir in the background of public order and
security concerns, interpreted the term “reasonable” under clause
(2) of Article 19 of the Constitution. It was expounded as under:
“37. The right provided under Article 19(1) has certain
exceptions, which empower the State to impose
reasonable restrictions in appropriate cases. The
ingredients of Article 19(2) of the Constitution are that:
(a) The action must be sanctioned by law;
(b) The proposed action must be a reasonable
restriction;
(c) Such restriction must be in furtherance of interests
of the sovereignty and integrity of India, the security of
the State, friendly relations with foreign States, public
order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence.
38. At the outset, the imposition of restriction is qualified
by the term “reasonable” and is limited to situations
such as interests of the sovereignty, integrity, security,
friendly relations with the foreign States, public order,
decency or morality or contempt of court, defamation or
incitement to an offence. Reasonability of a restriction is
used in a qualitative, quantitative and relative sense.
39. It has been argued by the counsel for the petitioners
that the restrictions under Article 19 of the Constitution
cannot mean complete prohibition. In this context, we
may note that the aforesaid contention cannot be
sustained in light of a number of judgments of this Court
wherein the restriction has also been held to include
complete prohibition in appropriate cases. [Madhya
76
(2020) 3 SCC 637

Bharat Cotton Assn. Ltd. v. Union of India, Narendra
Kumar v. Union of India, State of
Maharashtra v. Himmatbhai Narbheram Rao, Sushila
Saw Mill v. State of Orissa, Pratap Pharma (P)
Ltd. v. Union of India and Dharam Dutt v. Union of
India.]
40. The study of the aforesaid case law points to three
propositions which emerge with respect to Article 19(2)
of the Constitution. (i) Restriction on free speech and
expression may include cases of prohibition. (ii) There
should not be excessive burden on free speech even if
a complete prohibition is imposed, and the Government
has to justify imposition of such prohibition and explain
as to why lesser alternatives would be inadequate. (iii)
Whether a restriction amounts to a complete prohibition
is a question of fact, which is required to be determined
by the Court with regard to the facts and circumstances
of each case. [Refer to State of Gujarat v. Mirzapur Moti
Kureshi Kassab Jamat]
41. The second prong of the test, wherein this Court is
required to find whether the imposed restriction/
prohibition was least intrusive, brings us to the question
of balancing and proportionality. These concepts are
not a new formulation under the Constitution. In various
parts of the Constitution, this Court has taken a
balancing approach to harmonise two competing rights.
In Minerva Mills Ltd. v. Union of India and Sanjeev
Coke Mfg. Co. v. Bharat Coking Coal Ltd.], this Court
has already applied the balancing approach with
respect to fundamental rights and the directive
principles of State policy.”
41. Anuradha Bhasin’s case refers to the principle of proportionality
as formulated by this Court in Modern Dental College and
Research Centre and Others v. State of Madhya Pradesh and
Others77
in the following words:
77
(2016) 7 SCC 353

“...a limitation of a constitutional right will be
constitutionality permissible if: (i) it is designated for a
proper purpose; (ii) the measures undertaken to
effectuate such a limitation are rationally connected to
the fulfilment of that purpose; (iii) the measures
undertaken are necessary in that there are no
alternative measures that may similarly achieve that
same purpose with a lesser degree of limitation; and
finally (iv) there needs to be a proper relation
(‘proportionality stricto sensu’ or ‘balancing’) between
the importance of achieving the proper purpose and
the social importance of preventing the limitation on
the constitutional right.”
Subsequently, the principle was reiterated in the Aadhaar
judgment reported as Justice K. S. Puttasamy v. Union of India
(2).78
We need not elaborate on this principle in view of the limited
controversy involved in the present case, albeit the formulation
recognises the benefit and need for least intrusive measure when
it comes to curtailment of fundamental rights and for this purpose
the court can examine the reasonableness of the measures
undertaken and whether they are necessary, in that there are no
alternatives measures that can achieve the same purpose with a
lesser degree of restriction. Secondly, there has to be proper
proportionality or balance between the importance of achieving the
proper measure and social importance of preventing the limitation
on the constitutional right.
78
(2017) 10 SCC 1

42. The expression ‘reasonable restriction’ has been elucidated in
numerous decisions which have been quoted in Subramanian
Swamy v. Union of India and Others79
to connote that the
restriction cannot be arbitrary or excessive and should possess a
direct and proximate nexus with the object sought to be achieved.
Sufficient for our purpose would be reproduction of the
observations of P.N. Bhagwati, J. (as His Lordship then was) in
Maneka Gandhi v. Union of India80
wherein he had referred to the
authority in Rustom Cowasjee Cooper v. Union of India81
and
Bennett Coleman & Co. v. Union of India,82
to observe:
“20. It may be recalled that the test formulated in R.C.
Cooper case merely refers to “direct operation” or
‘direct consequence and effect’ of the State action on
the fundamental right of the petitioner and does not
use the word “inevitable” in this connection. But there
can be no doubt, on a reading of the relevant
observations of Shah, J., that such was the test really
intended to be laid down by the Court in that case. If
the test were merely of direct or indirect effect, it
would be an open-ended concept and in the absence
of operational criteria for judging “directness”, it would
give the Court an unquantitiable discretion to decide
whether in a given case a consequence or effect is
direct or not. Some other concept-vehicle would be
needed to quantify the extent of directness or
indirectness in order to apply the test. And that is
supplied by the criterion of “inevitable” consequence
or effect adumbrated in the Express Newspapers
case. This criterion helps to quantify the extent of
directness necessary to constitute infringement of a
79
(2016) 7 SCC 221
80
(1978) 1 SCC 248
81
(1970) 2 SCC 298
82
(1972) 2 SCC 788

fundamental right. Now, if the effect of State action on
fundamental right is direct and inevitable, then a
fortiori it must be presumed to have been intended by
the authority taking the action and hence this doctrine
of direct and inevitable effect has been described by
some jurists as the doctrine of intended and real
effect.”
43. The decisions in Rustom Cowasjee Cooper and Maneka Gandhi
are also relevant for our purpose as they have considered the
interrelation between the rights enshrined in Article 21, Article 14
and Article 19 and had made a departure from the majority view in
A.K. Gopalan v. State of Madras83
to hold that these freedoms
contained in Part III shade and merge into each other and are not
watertight compartments. They weave a pattern of guarantees on
the basic structure of human rights and impose negative
obligations on the State not to encroach on individual liberty in its
different dimensions. The rights under Part-III are wide ranging and
comprehensive, though they have been categorised under different
heads, namely, right to equality, right to freedom of expression and
speech, right against exploitation, right to freedom of religion,
cultural and educational rights, and right to constitutional remedies.
Each freedom has a different dimension and merely because the
limits of interference with one freedom are satisfied, the law is not
free from the necessity to meet the challenge of another
83
AIR 1950 SC 27

guaranteed freedom. Secondly, in Maneka Gandhi, it was held
that the expression ‘personal liberty’ in Article 21 is of the widest
amplitude and it covers a variety of rights which go on to constitute
the personal liberty of a man, though some of them have been
raised to the status of distinct fundamental rights and given
additional protection under Article 19. Article 21 does not exclude
Article 19 or vice-versa, or for that matter the right to equality
under Article 14 of the Constitution. Thus, Part III of the
Constitution is expansive and its connotative sense carries a
collection or bouquet of highly cherished rights. In Subramanian
Swamy, this Court referred to Charu Khurana and Others v.
Union of India and Others84
wherein it has been ruled that dignity
is the quintessential quality of personality and a basic constituent
along with honour and reputation of the rights guaranteed and
protected under Article 21. Dignity is a part of the individual rights
that form the fundamental fulcrum of collective harmony and
interest of a society. While right to speech and expression is
absolutely sacrosanct in the sense that it is essential for individual
growth and progress of democracy which recognises voice of
dissent, tolerance for discordant notes and acceptance of different
voices, albeit the right to equality under Article 14 and right to
84
(2015) 1 SCC 192

dignity as a part of Article 21 have their own significance. The
aforesaid proposition has been reiterated by Dr. D.Y.
Chandrachud, J., in India Young Lawyers Association and
Others (Sabarimala Temple, In RE.) v. State of Kerala and
Others,85
which decision refers to the four precepts which emerge
from the Preamble, namely, justice, in its social, economic and
political dimensions; individual liberty in the matter of thought,
expression, belief, faith and worship; equality of status and
opportunity amongst all citizens; and sense of fraternity amongst
all citizens that assures the dignity of human life. Individual dignity
can be achieved in a regime which recognises equality with other
citizens regardless of one’s religious beliefs or the group to which
one belongs. Religious beliefs and faiths ensure wider acceptance
of human dignity and liberty, but when conflict arises between the
two, the quest for human dignity, liberty and equality must prevail.
Constitutional interpretation must bring a sense of equilibrium- a
balance, so that read individually and together, the provisions of
the Constitution exist in a contemporaneous accord. Thus, effort
should be made to have synchrony between different parts of the
Constitution and different rights should be interpreted together so
that they exist in harmony. Freedoms elaborated in Part III are
85
(2019) 11 SCC 1

exercised within the society which are networked. Freedoms,
therefore, have linkages which cannot be ignored. In
Subramanian Swamy, this Court had referred to a compendium
of judgments dwelling on balancing of fundamental rights when the
right of a citizen comes in conflict with a different fundamental right
also granted by the Constitution as each citizen is entitled to enjoy
each and every one of the freedoms together and the Constitution
does not prefer one freedom to another. In Ram Jethmalani and
Others v. Union of India and Others,86
this Court has observed
that rights of citizens under Article 19(1) have to be balanced
against the rights of citizens and persons under Article 21 and the
latter rights cannot be sacrificed as this would lead to detrimental
consequences and even anarchy. Constitutional rights no doubt
very important, possibly are not made absolute as they may come
into conflict with each other and when competing they have to be
qualified and balanced. In Noise Pollution (V), In Re.87
it was
observed that Article 19(1)(a) cannot be pressed into service for
defeating the fundamental right guaranteed by Article 21 as if one
claims to right to speech, the others have the right to listen or
decline to listen. A person speaking cannot violate the rights of
86
(2011) 8 SCC 1
87
(2005) 5 SCC 733

others of peaceful, comfortable and pollution free right guaranteed
by Article 21.
44. Right to equality enshrined in Article 14 is recognition that the
principle of equality is inherent in the rule of law. In the positive
sense, it means absence of any privilege for particular individuals
and in the negative sense, no one can be discriminated against;
and anybody and everybody should be treated as equals. The
latter is the essence and core of right to equality and imposes
obligation on the State to take necessary steps so that every
individual is given equal respect and enjoys dignity as others,
irrespective of caste, creed, religion, identity, sexual preference
etc. Right to equality is embodied not only in Article 14, but also
finds different manifestations in Articles 15 to 18 of Part III, and
Articles 38, 39, 39A, 41 and 46 of Part IV. Thus, right to equality
has many facets, and is dynamic and evolving.88
45. It is not only the Preamble and Articles 14, 21 and others referred
to above which affirms the right to dignity of the individual. Clause
(e) to Article 51A, which incorporates fundamental duties, states
that it will be the obligation of every citizen to promote harmony
and the spirit of common brotherhood amongst all the people of
88
Indira Sawhney v. Union of India, (1992) Supp. 3 SCC 217 and Amita v. Union of India, (2005) 13
SCC 721

India, transcending religious, linguistic and regional or sectional
diversities and to renounce practices derogatory to the dignity of
women. Clause (f) states that we must value and preserve the rich
heritage of our composite culture.
46. At this stage, it is necessary to clarify what is meant by the
expression ‘dignity’ in the context of ‘hate speech’ – for an
expansive meaning, if given, would repress and impede freedom
to express views, opine and challenge beliefs, ideas and acts.
Dignity, in the context of criminalisation of speech with which we
are concerned, refers to a person’s basic entitlement as a member
of a society in good standing, his status as a social equal and as
bearer of human rights and constitutional entitlements.89
It gives
assurance of participatory equality in inter-personal relationships
between the citizens, and between the State and the citizens, and
thereby fosters self-worth.90
Dignity in this sense does not refer to
any particular level of honour or esteem as an individual, as in the
case of defamation which is individualistic. The Supreme Court of
the United States of America in Beauharnais v. Illinois,91
while
upholding conviction for hate speech, had emphasised that such
speech should amount to group defamation which though
89
See – Pat Eatock v. Andrew Bolt
90
O’Neill at (160) – (161) and Hill v. Church of Scientology of Toronto, (1995) 2 S.C.R. 1130 (117) and
(120)
91
343 U.S. 250 (1952)

analogous to individual defamation has been traditionally excluded
from free speech protection in America. Loss of dignity and self-
worth of the targeted group members contributes to disharmony
amongst groups, erodes tolerance and open-mindedness which
are a must for multi-cultural society committed to the idea of
equality. It affects an individual as a member of a group. It is
however necessary that at least two groups or communities must
be involved; merely referring to feelings of one community or group
without any reference to any other community or group does not
attract the ‘hate speech’ definition. Manzar Sayeed Khan, taking
note of the observations in Bilal Ahmad Kaloo, records that
common features of Sections 153A and 505(2) being promotion of
feeling of enmity, hatred or ill-will ‘between different’ religious or
racial or linguistic or regional groups or castes or communities,
involvement of at least two groups or communities is necessary.
Further, merely inciting the feeling of one community or group
without any reference to any other community or group would not
attract either provision. Definition of ‘hate speech’ as expounded
by Andrew F. Sellars prescribes that hate speech should target a
group or an individual as they relate to a group.

47. Preamble to the Constitution consciously puts together fraternity
assuring dignity of the individual and the unity and integrity of the
nation. Dignity of individual and unity and integrity of the nation are
linked, one in the form of rights of individuals and other in the form
of individual’s obligation to others to ensure unity and integrity of
the nation. The unity and integrity of the nation cannot be
overlooked and slighted, as the acts that ‘promote’ or are ‘likely’ to
‘promote’ divisiveness, alienation and schematism do directly and
indirectly impinge on the diversity and pluralism, and when they
are with the objective and intent to cause public disorder or to
demean dignity of the targeted groups, they have to be dealt with
as per law. The purpose is not to curtail right to expression and
speech, albeit not gloss over specific egregious threats to public
disorder and in particular the unity and integrity of the nation. Such
threats not only insidiously weaken virtue and superiority of
diversity, but cut-back and lead to demands depending on the
context and occasion, for suppression of freedom to express and
speak on the ground of reasonableness. Freedom and rights
cannot extend to create public disorder or armour those who
challenge integrity and unity of the country or promote and incite
violence. Without acceptable public order, freedom to speak and
express is challenged and would get restricted for the common

masses and law-abiding citizens. This invariably leads to State
response and, therefore, those who indulge in promotion and
incitement of violence to challenge unity and integrity of the nation
or public disorder tend to trample upon liberty and freedom of
others.
48. Before referring to provisions of the Penal Code, we would like to
refer to an article by Alice E. Marwick and Ross Miller of Fordham
University, New York (USA),92
elucidating on three distinct
elements that legislatures and courts can use to define and identify
‘hate speech’, namely – content-based element, intent-based
element and harm-based element (or impact-based element). The
content-based element involves open use of words and phrases
generally considered to be offensive to a particular community and
objectively offensive to the society. It can include use of certain
symbols and iconography. By applying objective standards, one
knows or has reasonable grounds to know that the content would
allow anger, alarm or resentment in others on the basis of race,
colour, creed, religion or gender. The intent-based element of ‘hate
speech’ requires the speaker’s message to intend only to promote
hatred, violence or resentment against a particular class or group
without communicating any legitimate message. This requires
92
‘Online harassment, defamation, and hateful speech: A primer of the legal landscape’

subjective intent on the part of the speaker to target the group or
person associated with the class/group. The harm or impact-based
element refers to the consequences of the ‘hate speech’, that is,
harm to the victim which can be violent or such as loss of self-
esteem, economic or social subordination, physical and mental
stress, silencing of the victim and effective exclusion from the
political arena. Nevertheless, the three elements are not watertight
silos and do overlap and are interconnected and linked. Only when
they are present that they produce structural continuity to
constitute ‘hate speech’.
49. On the aspect of content, Ramesh states that the effect of the
words must be judged from the standard of reasonable,
strongminded, firm and courageous men and not by those who are
weak and ones with vacillating minds, nor of those who scent
danger in every hostile point of view. The test is, as they say in
English Law, – ‘the man on the top of a Clapham omnibus’.
Therefore, to ensure maximisation of free speech and not create
‘free speaker’s burden’, the assessment should be from the
perspective of the top of the reasonable member of the public,
excluding and disregarding sensitive, emotional and atypical. It is
almost akin or marginally lower than the prudent man’s test. The

test of reasonableness involves recognition of boundaries within
which reasonable responses will fall, and not identification of a
finite number of acceptable reasonable responses. Further, this
does not mean exclusion of particular circumstances as frequently
different persons acting reasonably will respond in different ways in
the context and circumstances. This means taking into account
peculiarities of the situation and occasion and whether the group is
likely to get offended. At the same time, a tolerant society is
entitled to expect tolerance as they are bound to extend to others.
50. Richard Delgado93
has proposed a definition of ‘hate speech’ as
language that was intended to demean a group which a
reasonable person would recognise as a ‘racial insult’. Mari J.
Matsuda94
has referred to ‘hate speech’ as a message of racial
inferiority, prosecutorial, hateful and degraded. Kenneth Ward95
has analysed ‘hate speech’ as a form of expression, through which
the speaker primarily intends to vilify, humiliate or incite hatred
against their targets. As explained below, ‘content’ has relation with
the subject-matter, but is not synonymous with the subject-matter.
‘Content’ has more to do with the expression, language and
93
‘Words that Wound: A tort Action for Racial Insults, Epithets, and Name-Calling’, 17 Harv. C.R.-
C.L.L.rev. 133 (1982)
94
‘Public Response to Racist Speech: Considering the Victim’s Story’, 87 Mich.L.Rev. 2320 (1989)
95
‘Free Speech and the Development of Liberal Virtues: An Examination of the Controversies
Involving Flag Burning and Hate Speech’, 52 U.Miami K. Rev. 733 (1998)

message which should be to vilify, demean and incite psychosocial
hatred or physical violence against the targeted group.
51. The ‘context’, as indicated above, has a certain key variable,
namely, ‘who’ and ‘what’ is involved and ‘where’ and the ‘occasion,
time and under what circumstances’ the case arises. The ‘who’ is
always plural for it encompasses the speaker who utters the
statement that constitutes ‘hate speech’ and also the audience to
whom the statement is addressed which includes both the target
and the others. Variable context review recognises that all
speeches are not alike. This is not only because of group
affiliations, but in the context of dominant group hate speech
against a vulnerable and discriminated group, and also the impact
of hate speech depends on the person who has uttered the
words.96
The variable recognises that a speech by ‘a person of
influence’ such as a top government or executive functionary,
opposition leader, political or social leader of following, or a
credible anchor on a T.V. show carries a far more credibility and
impact than a statement made by a common person on the street.
Latter may be driven by anger, emotions, wrong perceptions or
mis-information. This may affect their intent. Impact of their speech
96
Hate Speech in Constitutional Jurisprudence: A Comparative Analysis by Michel Rosenfeld, 24
Cardozo L. Rev. 1523 2002-2003

would be mere indifference, meet correction/criticism by peers, or
sometimes negligible to warrant attention and hold that they were
likely to incite or had attempted to promote hatred, enmity etc.
between different religious, racial, language or regional groups.
Further, certain categories of speakers may be granted a degree of
latitude in terms of the State response to their speech.
Communities with a history of deprivation, oppression, and
persecution may sometimes speak in relation to their lived
experiences, resulting in the words and tone being harsher and
more critical than usual. Their historical experience often comes to
be accepted by the society as the rule, resulting in their words
losing the gravity that they otherwise deserve. In such a situation,
it is likely for persons from these communities to reject the tenet of
civility, as polemical speech and symbols that capture the
emotional loading can play a strong role in mobilising.97
Such
speech should be viewed not from the position of a person of
privilege or a community without such a historical experience, but
rather, the courts should be more circumspect when penalising
such speech. This is recognition of the denial of dignity in the past,
and the effort should be reconciliatory. Nevertheless, such speech
97
Myra Mrx Ferree, William A. Gamson, Jurgen Gerhards and Dieter Rucht, ‘Four Models of the
Public Sphere in Modern Democracies,’ published in THEORY AND SOCIETY, Vol. 31, No. 3 (June,
2002), pp. 289-324

should not provoke and ‘incite’ – as distinguished from discussion
or advocacy – ‘hatred’ and violence towards the targeted group.
Likelihood or similar statutory mandate to violence, public disorder
or ‘hatred’ when satisfied would result in penal action as per law.
Every right and indulgence has a limit. Further, when the offending
act creates public disorder and violence, whether alone or with
others, then the aspect of ‘who’ and question of indulgence would
lose significance and may be of little consequence.
52. Persons of influence, keeping in view their reach, impact and
authority they yield on general public or the specific class to which
they belong, owe a duty and have to be more responsible. They
are expected to know and perceive the meaning conveyed by the
words spoken or written, including the possible meaning that is
likely to be conveyed. With experience and knowledge, they are
expected to have a higher level of communication skills. It is
reasonable to hold that they would be careful in using the words
that convey their intent. The reasonable-man’s test would always
take into consideration the maker. In other words, the expression
‘reasonable man’ would take into account the impact a particular
person would have and accordingly apply the standard, just like we
substitute the reasonable man’s test to that of the reasonable

professional when we apply the test of professional negligence.98
This is not to say that persons of influence like journalists do not
enjoy the same freedom of speech and expression as other
citizens, as this would be grossly incorrect understanding of what
has been stated above. This is not to dilute satisfaction of the three
elements, albeit to accept importance of ‘who’ when we examine
‘harm or impact element’ and in a given case even ‘intent’ and/or
‘content element’.
53. Further, the law of ‘hate speech’ recognises that all speakers are
entitled to ‘good faith’ and ‘(no)-legitimate purpose’ protection.
‘Good faith’ means that the conduct should display fidelity as well
as a conscientious approach in honouring the values that tend to
minimise insult, humiliation or intimidation. The latter being
objective, whereas the former is subjective. The important
requirement of ‘good faith’ is that the person must exercise
prudence, caution and diligence. It requires due care to avoid or
minimise consequences. ‘Good faith’ or ‘no-legitimate purpose’
exceptions would apply with greater rigour to protect any genuine
98
In Bolam v. Friern Hospital Management Committee, [1957] 2 All E.R. 118, it was observed:
“A doctor is not guilty of negligence if he has acted in accordance
with a practice accepted as proper by a reasonable body of medical men
skilled in that particular art...Putting it the other way round, a doctor is not
negligent, if he is acting in accordance with such a practice, merely
because there is a body of opinion that takes a contrary view.”

academic, artistic, religious or scientific purpose, or for that matter
any purpose that is in public interest, or publication of a fair and
accurate report of any event or matter of public interest.99
Such
works would get protection when they were not undertaken with a
specific intent to cause harm. These are important and significant
safeguards. They highlight importance of intention in ‘hate speech’
adjudication. ‘Hate speech’ has no redeeming or legitimate
purpose other than hatred towards a particular group. A publication
which contains unnecessary asides which appear to have no real
purpose other than to disparage will tend to evidence that the
publications were written with a mala fide intention. However,
opinions may not reflect mala fide intention.
54. The present case, it is stated, does not relate to ‘hate speech’
causally connected with the harm of endangering security of the
State, but with ‘hate speech’ in the context of clauses (a) and (b) to
sub-section (1) of Section 153A, Section 295A and sub-section (2)
to Section 505 of the Penal Code. In this context, it is necessary to
draw a distinction between ‘free speech’ which includes the right to
comment, favour or criticise government policies; and ‘hate
speech’ creating or spreading hatred against a targeted community
or group. The former is primarily concerned with political, social
99
Racial and Religious Tolerance, 2001 (Victoria, Australia)

and economic issues and policy matters, the latter would not
primarily focus on the subject matter but on the substance of the
message which is to cause humiliation and alienation of the
targeted group. The object of criminalising the latter type of speech
is to protect the dignity (as explained above) and to ensure political
and social equality between different identities and groups
regardless of caste, creed, religion, sex, gender identity, sexual
orientation, linguistic preference etc. Freedom to express and
speak is the most important condition for political democracy. Law
and policies are not democratic unless they have been made and
subjected to democratic process including questioning and
criticism. Dissent and criticism of the elected government’s policy,
when puissant, deceptive or even false would be ethically wrong,
but would not invite penal action. Elected representatives in power
have the right to respond and dispel suspicion. The ‘market place
of ideas’ and ‘pursuit of truth’ principle are fully applicable.
Government should be left out from adjudicating what is true or
false, good or bad, valid or invalid as these aspects should be left
for open discussion in the public domain. This justification is also
premised on the conviction that freedom of speech serves an
indispensable function in democratic governance without which the
citizens cannot successfully carry out the task to convey and

receive ideas. Political speech relating to government policies
requires greater protection for preservation and promotion of
democracy. Falsity of the accusation would not be sufficient to
constitute criminal offence of ‘hate speech’. The Constitutional
Bench decision of this Court in Kedar Nath Singh and the
subsequent decisions have clearly and uniformly held that there is
difference between ‘government established by law’ and ‘persons
for the time being engaged in carrying on administration’ and that
comment or criticism of the government action in howsoever
strong words must be protected and cannot be a ground to take
penal action unless the words written or spoken, etc. have
pernicious tendency or intention of creating public disorder.
Without exciting those feelings which generate inclination to cause
public disorder by acts of violence, political views and criticism
cannot be made subject matter of penal action. Reference to later
decision in Arun Ghosh drawing distinction between serious and
aggravated from of breaches of public order that endanger public
peace and minor breaches that do not affect public at large would
be apposite. In consonance with the constitutional mandate of
reasonable restriction and doctrine of proportionality in facts of
each case it has to be ascertained whether the act meets the top
of Clapham omnibus test and whether the act was ‘likely’ to lead to

disturbance of the current life of the community so as to amount to
disturbance of public order; or it may affect an individual or some
individuals leaving the tranquillity of the society undisturbed. The
latter and acts excluded on application of the top of Clapham
omnibus test are not covered. Therefore, anti-democratic speech
in general and political extremist speech in particular, which has no
useful purpose, if and only when in the nature of incitement to
violence that ‘creates’, or is ‘likely to create’ or ‘promotes’ or is
‘likely to promote’ public disorder, would not be protected.
55. Sometimes, difficulty may arise and the courts and authorities
would have to exercise discernment and caution in deciding
whether the ‘content’ is a political or policy comment, or creates or
spreads hatred against the targeted group or community. This is of
importance and significance as overlap is possible and principles
have to be evolved to distinguish. We would refer to one example
to illustrate the difference. Proponents of affirmative action and
those opposing it, are perfectly and equally entitled to raise their
concerns and even criticise the policies adopted even when
sanctioned by a statute or meeting constitutional scrutiny, without
any fear or concern that they would be prosecuted or penalised.
However, penal action would be justified when the speech

proceeds beyond and is of the nature which defames, stigmatises
and insults the targeted group provoking violence or psychosocial
hatred. The ‘content’ should reflect hate which tends to vilify,
humiliate and incite hatred or violence against the target group
based upon identity of the group beyond and besides the subject
matter.
56. Our observations are not to say that persons of influence or even
common people should fear the threat of reprisal and prosecution,
if they discuss and speak about controversial and sensitive topics
relating to religion, caste, creed, etc. Such debates and right to
express one’s views is a protected and cherished right in our
democracy. Participants in such discussions can express divergent
and sometimes extreme views, but should not be considered as
‘hate speech’ by itself, as subscribing to such a view would stifle all
legitimate discussions and debates in public domain. Many a
times, such discussions and debates help in understanding
different view-points and bridge the gap. Question is primarily one
of intent and purpose. Accordingly, ‘good faith’ and ‘no legitimate
purpose’ exceptions would apply when applicable.
57. On the aspect of truth or true facts, reference can be made to the
decision of this Court in K.A. Abbas, which pertained to the

documentary called ‘A Tale of Four Cities’ portraying contrast
between the lives of rich and poor in the four principal cities of the
country. The challenge was to the grant of certificate for exhibition
restricted to adults. It was observed that audience in India can be
expected to view with equanimity the different historical facts and
stories. There is no bar in showing carnage or bloodshed which
have historical value and depiction of such scenes as the sack of
Delhi by Nadir Shah may be permissible, if handled delicately as a
part of an artistic portrayal of confrontation with Mohd. Shah
Rangila. Clearly, the restrictions were not to be reduced to the level
where the protection to the least capable and the most deprived
amongst us would be applicable. In Ebrahim Suleiman Sait v. M.
C. Mohammed and Another,100
it was observed that speaking the
truth was not an answer to the charge of corrupt practice and what
was relevant was whether the speech had promoted or had sought
to promote feelings of enmity or hatred. The likelihood must be
judged from healthy and reasonable standard thereby accepting
the position that historical truth may be a relevant and important
factor. However, the historical truth must be depicted without in
any way disclosing or encouraging hatred or enmity between
different classes or communities. In Lalai Singh Yadav and
100
(1980) 1 SCC 398

Another v. State of Uttar Pradesh,101
the Allahabad High Court
had observed that the book written by Dr. B. R. Ambedkar throwing
light on the oppression and exploitation of Dalits and suggesting
conversion to Buddhism was couched in a restrained language
and did not amount to an offence. Rational criticism of religious
tenets, wis acceptable as legitimate criticism, is not an offence for
no reasonable person of normal susceptibilities would object to it.
In Ramesh, challenge to the serial ‘Tamas’ was rejected on the
ground that it was an instructive serial revealing an evil facet of
history within permissible extent of examination even if it depicted
pre-partition communal tension and violence. A hurt, which is a
product of a benevolent intent, may incite negative attitudes to the
victim but would fall short of criminal hurt, i.e. hatred. Watching the
bloodshed that accompanied partition, the average person will
“learn from the mistakes of the past and realise the machinations
of the fundamentalists and will not perhaps commit those mistakes
again”. Knowledge of tragic experiences of the past would help
“fashion our present in a rational and reasonable manner and view
our future with wisdom and care”. Quoting Lord Morley, Mukharji,
J. noted in paragraph 20:
“20...It has been said by Lord Morley in “On
Compromise” that it makes all the difference in the
101
1971 Cri LJ 1773 (FB) (Allahabad)

world whether you put truth in the first place or in the
second place. It is true that a writer or a preacher
should cling to truth and right, if the very heavens fall.
This is a universally accepted basis. Yet in practice, all
schools alike are forced to admit the necessity of a
measure of accommodation in the very interests of truth
itself. Fanatic is a name of such ill-repute, exactly
because one who deserves to be so called injures good
causes by refusing timely and harmless concession; by
irritating prejudices that a wiser way of urging his own
opinion might have turned aside; by making no
allowances, respecting no motives, and recognising
none of those qualifying principles that are nothing less
than necessary to make his own principle true and
fitting in a given society. Judged by all standards of a
common man's point of view of presenting history with a
lesson in this film, these boundaries appear to us could
(sic to) have been kept in mind. This is also the lesson
of history that naked truth in all times will not be
beneficial but truth in its proper light indicating the evils
and the consequences of those evils is instructive and
that message is there in “Tamas” according to the views
expressed by the two learned Judges of the High Court.
They viewed it from an average, healthy and
commonsense point of view. That is the yardstick.
There cannot be any apprehension that it is likely to
affect public order or it is likely to incite into (sic) the
commission of any offence. On the other hand, it is
more likely that it will prevent incitement to such
offences in future by extremists and fundamentalists."
It should also be noted that contrary to the positivist claim of
singularity and absoluteness of ‘truth’, it may, in actuality, be a
subjective element, making it one person’s relative truth over
another’s. Cultural value system, historical experiences, lived
realities of social systems and hierarchies – all these are
determinants in how an individual perceives the truth to be.
George Bernard Shaw has said that our whole theory of freedom

of speech and opinion for all citizens rests not on the assumption
that everybody was right, but on the certainty that everybody was
wrong on some point on which somebody else was right, so that
there was a public danger in allowing anybody to go unheard.102
Many so-called truths have been rectified and corrected because
they were disputed scientifically or economically, socially and
politically. One should not rule out possibility of divergency
between truth and popular belief or even situations that are
described as epistemological problem of the ‘post truth’ era, which
is not that people do not value truth, but some may believe and
accept falsehoods.103
Nevertheless, in many ways, free speech
has empowered those who were marginalised and discriminated
and thus it would be wholly incorrect and a mistake to assume that
free speech is an elite concept and indulgence.
58. On the question of harm, the legislations refer to actual or
sometimes likely or anticipated danger, of which the latter must not
be remote, conjectural or farfetched. It should have proximate and
direct nexus with the expression ‘public order’ etc. Otherwise, the
commitment to freedom of expression and speech would be
suppressed without the community interest being in danger. In the
102
George Bernard Shaw, Socialism off Millionaires, 16(1901)
103
Joseph Blocher, ‘Free Speech and Justified True Belief’, Harvard Law Review, Vol. 133, No.2,
December 2019.

Indian context, the tests of ‘clear and present danger’ or ‘imminent
lawless action’ unlike United States, are identical as has been
enunciated in the case of Shreya Singhal. The need to establish
proximity and causal connection between the speech with the
consequences has been dealt with and explained in Dr. Ram
Manohar Lohia in great detail. In the case of actual occurrence of
public disorder, the cause and effect relationship may be
established by leading evidence showing the relationship between
the ‘speech’ and the resultant ‘public disorder’. In other cases
where public disorder has not occurred due to police, third party
intervention, or otherwise, the ‘clear and present danger’ or
‘imminent lawless action’ tests are of relevance and importance.
‘Freedom and rational’ dictum should be applied in absence of
actual violence, public disorder etc. Further, when reference is to
likelihood, the chance is said to be likely when the possibility is
reasonably or rather fairly certain, i.e. fairly certain to occur than
not. Therefore, in absence of actual violence, public disorder, etc.,
something more than words, in the form of ‘clear and present
danger’ or ‘imminent lawless action’, either by the maker or by
others at the maker’s instigation is required. This aspect has been
examined subsequently while interpreting the penal provisions.

59. We have repeatedly referred to the word ‘tolerance’, and noted that
the expression ‘who’ refers to both the speaker and the targeted
audience; and will subsequently refer to the ratio of the Calcutta
High Court judgment in P.K. Chakravarty v. The King,104
that
something must be known of the kind of people to whom the words
are addressed. Similarly, in paragraph 49, we have observed that a
tolerant society is entitled to expect tolerance as they are bound to
extend to others. The expression ‘tolerance’ is, therefore,
important, yet defining it is problematic as it has different
meanings. We need not examine the philosophies or the meanings
in detail, and would prefer to quote Article 1 from the Declaration of
Principles of Tolerance by the Member States of the United
Nations Educational, Scientific and Cultural Organisation adopted
in its meeting in Paris at the 28th
session of the General
Conference, which reads as under:
“Article 1 - Meaning of tolerance
1.1 Tolerance is respect, acceptance and appreciation
of the rich diversity of our world's cultures, our forms of
expression and ways of being human. It is fostered by
knowledge, openness, communication, and freedom of
thought, conscience and belief. Tolerance is harmony in
difference. It is not only a moral duty, it is also a political
and legal requirement. Tolerance, the virtue that makes
peace possible, contributes to the replacement of the
culture of war by a culture of peace.
104
AIR 1926 Cal. 1133

1.2 Tolerance is not concession, condescension or
indulgence. Tolerance is, above all, an active attitude
prompted by recognition of the universal human rights
and fundamental freedoms of others. In no
circumstance can it be used to justify infringements of
these fundamental values. Tolerance is to be exercised
by individuals, groups and States.
1.3 Tolerance is the responsibility that upholds human
rights, pluralism (including cultural pluralism),
democracy and the rule of law. It involves the rejection
of dogmatism and absolutism and affirms the standards
set out in international human rights instruments.
1.4 Consistent with respect for human rights, the
practice of tolerance does not mean toleration of social
injustice or the abandonment or weakening of one's
convictions. It means that one is free to adhere to one's
own convictions and accepts that others adhere to
theirs. It means accepting the fact that human beings,
naturally diverse in their appearance, situation, speech,
behaviour and values, have the right to live in peace
and to be as they are. It also means that one’s views
are not to be imposed on others.”
There are multiple justifications for ‘tolerance’, which include
respect for autonomy; a general commitment to pacifism; concern
for other virtues such as kindness and generosity; pedagogical
concerns; a desire for reciprocity; and a sense of modesty about
one’s ability to judge the beliefs and actions of others.105
However,
tolerance cannot be equated with appeasement, permissiveness,
or indifference. It is also not identical to neutrality. Toleration
requires self-consciousness and self-control in a sense that it is a
restraint of negative judgment that is free and deliberate. It implies
105
Internet Encyclopaedia of Philosophy, Toleration by Andrew Fiala, ISSN 2161-0002

no lack of commitment to one’s own belief but rather it condemns
oppression or persecution of others.106
Interpreted in this sense,
there is no ‘paradox of toleration’.107
The paradox whether those
who express their views or activities that are themselves intolerant
should be tolerated is answered by making evaluative judgment
predicated on rational universal principles.108
The test accepts
rational argument principle to keep intolerant philosophies in
check. Thus, tolerance is not to accept things that are better to
overcome,109
or when practices reflect intolerance within
themselves, like disregard for human rights and principles of
equality and fraternity. Further, there may even be unjustified
religious beliefs in relation to morality, politics, origin of humanity,
social hierarchies, etc. which should not be tolerated.110
The
argument can also be grounded on comprehensive moral theory.111
Tolerance also means developing an ‘overlapping consensus’
between individuals and groups with diverse perspectives to find
106
John F. Kennedy
107
Karl Popper in The Open Society and Its Enemies, who has observed:
“...If we extend unlimited tolerance even to those who are intolerant, if we
are not prepared to defend a tolerant society against the onslaught of the
intolerant, then the tolerant will be destroyed, and tolerance with them...”
108
According to Martin Packer, at least since Immanuel Kant and David Hume, morality has been
seeing as needing to take the form of ‘rational, universal principles’ that would guide the autonomous
individual. These principles would necessarily transcend the many dictates of specific societies and
cultures; the dictates are contingent while morality and the good must be universally compelling.
109
Marjoka Van Doorn, the Nature of Tolerance and the Social Circumstances in Which it Emerges,
Current Sociology Review, 2014, Vol. 62(6) 905-927
110
Sam Hariss, The End of Faith
111
Michael Sandel Democracy’s Discontent (1998)

reason to agree about certain principles of justice.112
It is being fair
to allow reasonable consensus to emerge despite differences. In
essence, it implies non-discrimination of individuals or groups, but
without negating the right to disagree and disapprove belief and
behaviour. It signifies that all persons or groups are equal, even
when all opinions and conduct are not equal. It also means use of
temperate language and civility towards others. In the correct and
true sense, undoubtedly ‘tolerance’ is a great virtue in all societies,
which when practiced by communities, gets noticed, acknowledged
and appreciated.
(iv) Interpretation of the statutory provisions
60. We would now interpret Section 153A of the Penal Code, which
reads as under:
“153A. Promoting enmity between different groups
on grounds of religion, race, place of birth,
residence, language, etc., and doing acts prejudicial
to maintenance of harmony.— (1) Whoever—
(a) by words, either spoken or written, or by signs or
by visible representations or otherwise, promotes or
attempts to promote, on grounds of religion, race,
place of birth, residence, language, caste or
community or any other ground whatsoever,
disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, language or
regional groups or castes or communities, or
112
John Rawls, Theory of Justice (1971). Rawls idea of justice as fairness is based upon principle that
justice is political and not necessarily on moral principles.

(b) commits any act which is prejudicial to the
maintenance of harmony between different religious,
racial, language or regional groups or castes or
communities, and which disturbs or is likely to disturb
the public tranquillity, or
(c) organises any exercise, movement, drill or other
similar activity intending that the participants in such
activity shall use or be trained to use criminal force or
violence or knowing it to be likely that the participants
in such activity will use or be trained to use criminal
force or violence, or participates in such activity
intending to use or be trained to use criminal force or
violence or knowing it to be likely that the participants
in such activity will use or be trained to use criminal
force or violence, against any religious, racial,
language or regional group or caste or community
and such activity, for any reason whatsoever causes
or is likely to cause fear or alarm or a feeling of
insecurity amongst members of such religious, racial,
language or regional group or caste or community,
shall be punished with imprisonment which may
extend to three years, or with fine, or with both.
Offence committed in place of worship, etc.— (2)
Whoever commits an offence specified in sub-section
(1) in any place of worship or in any assembly
engaged in the performance of religious worship or
religious ceremonies, shall be punished with
imprisonment which may extend to five years and
shall also be liable to fine.”
61. In the present case, we are not concerned with clause (c) to sub-
section (1) to Section 153A and hence we would not examine the
same. Section 153A has been interpreted by this court in Manzar
Sayeed Khan and Balwant Singh and other cases. It would be,
however, important to refer to the legislative history of this Section

as the same was introduced by the Indian Penal Code
(Amendment) Act, 1898 on the recommendation of the Select
Committee. The Section then enacted had referred to words,
spoken or written, or signs or visible representation or other means
that promote or attempt to promote feeling of enmity or hatred
between different classes of citizens of India which shall be
punished with imprisonment that may extend to two years or fine
or with both. The explanation to the said Section was as under:
“Explanation.– It does not amount to an offence within
the meaning of this section to point out without
malicious intention and with an honest view to their
removal, matters which are producing or have a
tendency to produce, feelings of enmity or hatred
between different classes of Her Majesty’s subjects.”
The original enacted Section was amended with clauses (a)
and (b) by the Criminal Law (Amendment) Act, 1969 and clause (c)
was subsequently inserted by the Criminal Law (Amendment) Act,
1972.113
62. The Calcutta High Court in P.K. Chakravarty had delved into the
question of intention and had observed that the intention as to
whether or not the person accused was promoting enmity is to be
collected from the internal evidence of the words themselves, but
this is not to say that other evidence cannot be looked into.
113
The Wounded Vanity of Governments in ‘Republic of Rhetoric: Free Speech and the Constitution of
India’ by Abhinav Chandrachud, Penguin Books India (2017)

Likewise, while examining the question of likelihood to promote ill-
feelings the facts and circumstances of that time must be taken
into account. Something must be known of the kind of people to
whom the words are addressed. Words will be generally decisive,
especially in those cases where the intention is expressly declared
if the words used naturally, clearly or indubitably have such
tendency. Then, such intention can be presumed as it is the natural
result of the words used. However, the words used and their true
meaning are never more than evidence of intention, and it is the
real intention of the person charged that is the test. The judgment
rejects the concept of constructive intention. Similarly, the Lahore
High Court in Devi Sharan Sharma had observed that intention
can be deduced from internal evidence of the words as well as the
general policy of the paper in which the concerned article was
published, consideration of the person for whom it was written and
the state of feeling between the two communities involved. In case
the words used in the article are likely to produce hatred, they
must be presumed to be intended to have that effect unless the
contrary is shown. The Bombay High Court in Gopal Vinayak
Godse has observed that the intention to promote enmity or hatred
is not a necessary ingredient of the offence. It is enough to show
that the language of the writing is of the nature calculated to

promote feelings of enmity or hatred, for a person must be
presumed to intend the natural consequences of his act. The view
expressed by the Bombay High Court in Gopal Vinayak Godse
lays considerable emphasis on the words itself, but the view
expressed in P.K. Chakravarthy and Devki Sharma take a much
broader and a wider picture which, in our opinion, would be the
right way to examine whether an offence under Section 153A,
clauses (a) and (b) had been committed. The ordinary reasonable
meaning of the matter complained of may be either the literal
meaning of the published matter or what is implied in that matter or
what is inferred from it. A particular imputation is capable of being
conveyed means and implies it is reasonably so capable and
should not be strained, forced or subjected to utterly unreasonable
interpretation. We would also hold that deliberate and malicious
intent is necessary and can be gathered from the words itself-
satisfying the test of top of Clapham omnibus, the who factor-
person making the comment, the targeted and non targeted group,
the context and occasion factor- the time and circumstances in
which the words or speech was made, the state of feeling between
the two communities, etc. and the proximate nexus with the
protected harm to cumulatively satiate the test of ‘hate speech’.

‘Good faith’ and ‘no legitimate purpose’ test would apply, as they
are important in considering the intent factor.
63. In Balwant Singh this Court had accepted that mens rea is an
essential ingredient of the offence under Section 153A and only
when the spoken or written words have the intention of creating
public disorder for disturbance of law and order or affect public
‘tranquillity’, an offence can be said to be committed. This decision
was relied on in Bilal Ahmed Kaloo114
while referring to and
interpreting sub-section (2) to Section 505 of the Penal Code.
Similarly, in Manzar Sayeed Khan, the intention to promote feeling
of enmity or hatred between different classes of people was
considered necessary as Section 153A requires the intention to
cause disorder or incite the people to violence. The intention has to
be judged primarily by the language of the book and the
circumstances in which the book was written and published.
64. In the context of Section 153A(b) we would hold that public
tranquillity, given the nature of the consequence in the form of
punishment of imprisonment of up to three years, must be read in
a restricted sense synonymous with public order and safety and
not normal law and order issues that do not endanger the public
114
Bilal Ahmed Kaloo was overruled on a different point in Prakash Kumar Alias Prakash Bhutto v.
State of Gujarat, (2005) 2 SCC 409

interest at large. It cannot be given the widest meaning so as to fall
foul of the requirement of reasonableness which is a constitutional
mandate. Clause (b) of Section 153A, therefore, has to be read
accordingly to satisfy the constitutional mandate. We would
interpret the words ‘public tranquillity’ in clause (b) would mean
ordre publique a French term that means absence of insurrection,
riot, turbulence or crimes of violence and would also include all
acts which will endanger the security of the State, but not acts
which disturb only serenity, and are covered by the third and
widest circle of law and order. Public order also includes acts of
local significance embracing a variety of conduct destroying or
menacing public order. Public Order in clause (2) to Article 19 nor
the statutory provisions make any distinction between the majority
and minority groups with reference to the population of the
particular area though as we have noted above this may be of
some relevance. When we accept the principle of local
significance, as a sequitur we must also accept that majority and
minority groups could have, in a given case, reference to a local
area.
65. Section 295A and clause (2) of Section 505 of the Penal Code
reads as under:

“295-A. Deliberate and malicious acts intended to
outrage religious feelings of any class by insulting
its religion or religious beliefs.— Whoever, with
deliberate and malicious intention of outraging the
religious feelings of any class of citizens of India, by
words, either spoken or written, or by signs or by visible
representations or otherwise, insults or attempts to
insult the religion or the religious beliefs of that class,
shall be punished with imprisonment of either
description for a term which may extend to three years,
or with fine, or with both.
xx xx xx
505. Statements conducing to public mischief.—
xx xx xx
(2) Statements creating or promoting enmity, hatred or
ill-will between classes.— Whoever makes, publishes or
circulates any statement or report containing rumour or
alarming news with intent to create or promote, or which
is likely to create or promote, on grounds of religion,
race, place of birth, residence, language, caste or
community or any other ground whatsoever, feelings of
enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or
communities, shall be punished with imprisonment
which may extend to three years, or with fine, or with
both.”
The two provisions have been interpreted earlier in a number
of cases including Ramji Lal Modi, Kedar Nath, Bilal Ahmed
Kaloo. It could be correct to say that Section 295A of the Penal
Code encapsulates of all three elements, namely, it refers to the
content-based element when it refers to words either spoken or
written, or by signs or visible representation or otherwise.
However, it does not on the basis of content alone makes a person

guilty of the offence. The first portion refers to deliberate and
malicious intent on the part of the maker to outrage religious
feeling of any class of citizens of India. The last portion of Section
295A refers to the harm-based element, that is, insult or attempt to
insult religions or religious belief of that class. Similarly, sub-
section (2) to Section 505 refers to a person making publishing or
circulating any statement or report containing rumour or alarming
news. Thereafter, it refers to the intent of the person which should
be to create or promote and then refers to the harm-based
element, that is, likely to create or promote on the ground of
religion, race, place of birth, residence, language, cast, etc., feeling
of enmity, hatred or ill-will between different religions, racial
language, religious groups or castes or communities, etc.
66. In Bilal Ahmad Kaloo, this Court had drawn a distinction between
sub-section (2) to Section 505 and clause (a) to Section 153A of
the Penal Code observing that publication is not necessary in the
latter while it is sine qua non under clause (2) of Section 505.
Clause (2) of Section 505 of the Penal Code cannot be interpreted
disjunctively and the words ‘whosoever makes, publishes or
circulates’ are supplemented to each other. The intention of the
legislature in providing two different sections of the same subject

vide single amending act would show that they cover two different
fields of same colour.
67. Clauses (a) and (b) to sub-section (1) to Section 153A of the Penal
Code use the words ‘promotes’ and ‘likely’ respectively. Similarly,
Section 295-A uses the word ‘attempts’ and sub-section (2) to
Section 505 uses the words ‘create or promote’. Word ‘likely’ as
explained above, in our opinion, convey the meaning, that the
chance of the event occurring should be real and not fanciful or
remote (Tillmanns Butcheries Pty Ltd. v. Australasian Meat
Industry Employees’ Union115
). The standard of ‘not improbable’
is too weak and cannot be applied as it would infringe upon and
fall foul of reasonable restriction and the test of proportionality. This
is the mandate flowing from the catena of judgments of the
Constitutional Benches which we have referred to earlier and also
the decision in Shreya Singhal drawing distinction between
advocacy, discussion and incitement and that only the latter, i.e.
the incitement, is punishable whereas the former two would fall
within the domain of freedom to express and convey one’s
thoughts and ideas. ‘Incitement’ is a restricted term under the
American Speech Law which has been adopted by us and as per
Brandenburg applies when the incitement is imminent or almost
115
(1979) 27 ALR 380

inevitable. There has been some criticism that the said test is too
strong, nevertheless, it conveys that the standard has to be strict.
Instigation must necessarily and specifically be suggestive of the
consequences. Sufficient certainty to incite the consequences
must be capable of being spelt out to be incitement. Further, it is
for the prosecution to show and establish that the standard has
been breached by leading evidence, which can be both oral and
documentary. ‘Promote’ does not imply mere describing and
narrating a fact, or giving opinion criticising the point of view or
actions of another person – it requires that the speaker should
actively incite the audience to cause public disorder. This active
incitement can be gauged by the content of the speech, the
context and surrounding circumstances, and the intent of the
speaker. However, in case the speaker does not actively incite the
descent into public disorder, and is merely pointing out why a
certain person or group is behaving in a particular manner, what
are their demands and their point of view, or when the speaker
interviews such person or group, it would be a passive delivery of
facts and opinions which may not amount to promotion.
68. The word ‘attempt’, though used in Sections 153-A and 295-A of
the Penal Code, has not been defined. However, there are judicial

interpretations that an ‘attempt to constitute a crime’ is an act done
or forming part of a series of acts which would constitute its actual
commission but for an interruption. An attempt is short of actual
causation of crime and more than mere preparation. In Aman
Kumar v. State of Haryana,116
it was held that an attempt is to be
punishable because every attempt, although it falls short of
success, must create alarm, which by itself is an injury, and the
moral guilt of the offender is same as if he had succeeded. Moral
guilt must be united to injury in order to justify punishment. Further,
in State v. Mohd. Yakub,117
this Court observed:
“13...What constitutes an attempt is mixed question
of law and fact depending largely upon the
circumstances of a particular case. "Attempt" defies
a precise and exact definition. Broadly speaking all
crimes which consist of the commission of
affirmative acts are preceded by some covert or
overt conduct which may be divided into three
stages. The first stage exists when the culprit first
entertains the idea or intention to commit an
offence. In the second stage he makes preparation
to commit it. The third stage is reached when the
culprit takes deliberate overt act or step to commit
the offence. Such overt act or step in order to be
'criminal' need not be the penultimate act towards
the commission of the offence. It is sufficient if such
acts were deliberately done, and manifest a clear
intention to commit the offence aimed, being
reasonably proximate to the consummation of the
offence...”
116
(2004) 4 SCC 379
117
(1980) 3 SCC 57.

On the scope of proximity, it was elucidated that the measure
of proximity is not in relation to time and place but in relation to
intention.
In the context of ‘hate speech’, including the offences related
to promoting disharmony or feelings of enmity, hatred or ill-will, and
insulting the religion or the religious beliefs, it would certainly
require the actual utterance of words or something more than
thought which would constitute the content. Without actual
utterance etc. it would be mere thought, and thoughts without overt
act is not punishable. In the case of ‘publication’, again a mere
thought would not be actionable, albeit whether or not there is an
attempt to ‘publish’ would depend on facts. The impugned act
should be more than mere preparation and reasonably proximate
to the consummation of the offence, which has been interrupted.
The question of intent would be relevant. On the question of the
harm’s element, same test and principle, as applicable in the case
of ‘likely’ would apply, except for the fact that for intervening
reasons or grounds public disorder or violence may not have taken
place.
69. Having interpreted the relevant provisions, we are conscious of the
fact that we have given primacy to the precept of ‘interest of public

order’ and by relying upon ‘imminent lawless action’ principle, not
given due weightage to the long-term impact of ‘hate’ speech as a
propaganda on both the targeted and non-targeted groups. This is
not to undermine the concept of dignity, which is the fundamental
foundation on the basis of which the citizens must interact between
themselves and with the State. This is the considered view of the
past pronouncements including the Constitution Bench judgments
with which we are bound. Further, a ‘hate speech’ meeting the
criteria of ‘clear and present danger’ or ‘imminent lawless action’
would necessarily have long-term negative effect. Lastly, we are
dealing with penal or criminal action and, therefore, have to
balance the right to express and speak with retaliatory criminal
proceedings. We have to also prevent abuse and check misuse.
This dictum does not, in any way, undermine the position that we
must condemn and check any attempt at dissemination of
discrimination on the basis of race, religion, caste, creed or
regional basis. We must act with the objective for promoting social
harmony and tolerance by proscribing hateful and inappropriate
behaviour. This can be achieved by self-restraint, institutional
check and correction, as well as self-regulation or through the
mechanism of statutory regulations, if applicable. It is not penal
threat alone which can help us achieve and ensure equality

between groups. Dignity of citizens of all castes, creed, religion
and region is best protected by the fellow citizens belonging to
non-targeted groups and even targeted groups. As stated earlier,
in a polity committed to pluralism, hate speech cannot conceivably
contribute in any legitimate way to democracy and, in fact,
repudiates the right to equality.
70. Majority of the cases referred to by the petitioner were cases
wherein after charge-sheet and trial, this Court had come to the
conclusion that no offence had been proved and established under
Section 153A, 295A or sub-section (2) to Section 505 of the Penal
Code. We do not deem it necessary to reproduce the facts of those
decisions and apply their ratio in the present case. However, we
would like to refer to judgments where this Court has at the initial
stage itself quashed the proceedings arising out of the FIR,
namely, Manzar Sayeed Khan, Mahendra Singh Dhoni,
Ramesh as well as Balwant Singh to clarify the ratio.
71. In Balwant Singh, this Court, allowing the appeal, had set aside
convictions under Sections 124A and 153A of the Penal Code.
While we are not concerned with Section 124A, this Court
significantly observed that the appellants were never leading a
procession or raising slogans with the intent to incite people,

indicating that the Court did take into account the ‘who’ factor as
the appellants were unknown and inconsequential. This is of
consequence as far as Section 153A of the Penal Code is
concerned. Both the content and context, given the occasion, were
highly incriminating and possibly warranted conviction, but as per
paragraphs 10 and 11, the court was not convinced that the
prosecution witnesses had spoken the whole truth and what
slogan(s) was/were actually shouted. Lastly, the harm effect or
impact was also taken into account. What is acceptable speech in
one case, it could be well argued, should be acceptable in another,
and therefore the ratio in Balwant Singh must be applied with
caution as the decision had proceeded on failure of the
prosecution. The ‘who’ factor as a variable had weighed with the
court. Besides there was no impact or harm.
72. Manzar Sayeed Khan was a case wherein the appellants had
published a book titled ‘Shivaji: Hindu King in Islamic India’
authored by Prof. James W. Laine, a Professor of Religious
Studies in Macalester College, United States of America, which
had led to registration of FIR against the Indian Publisher and a
Sanskrit scholar whose name had appeared in the
acknowledgement of the book for having helped the author by

providing him some information during the latter’s visit to Pune.
The primary reason according to us why the appeal was allowed
and the proceedings arising from the FIR were quashed at the
initial stage are reflected in paragraph 19 of the judgment which
notes that the author was a well-known scholar who had done
extensive research before publishing the book. Further, he had
relied upon material and records at Bhandarkar Oriental Research
Institute (BORI), Pune. It was highly improbable to accept that any
serious and intense scholar like the author would have any desire
or motive to involve himself in promoting or attempt to promote any
disharmony between communities, castes or religions within the
State. Good faith and (no) legitimate purpose principle was
effectively applied. These principles were also applied by this
Court in Ramesh holding that the T.V. Serial ‘Tamas’ did not depict
communal tension or violence to fall foul of Section 153A of the
Penal Code and/or was the serial prejudicial to national integration
to fall under Section 153B of the Penal Code. Reliance was also
placed on the test of ‘Clapham omnibus’ referred to above.
Mahendra Singh Dhoni was a case in which prosecution under
Section 295A was initiated by filing a private complaint on the
ground that the photograph of the well-known cricketer, as
published in the magazine, was with a caption ‘God of Big Things’.

It was obvious that prosecution on the basis of content was absurd
and too farfetched by any standards even if we ignore the intent or
the hurt element.
(v) Validity of First Information Reports (FIRs)
73. Acronym FIR, or the First Information Report, is neither defined in
the Criminal Code nor is used therein, albeit it refers to the
information relating to the commission of a cognisable offence.
This information, if given orally to an officer in-charge of the police
station, is mandated to be reduced in writing. Information to be
recorded in writing need not be necessarily by an eye-witness, and
hence, cannot be rejected merely because it is hearsay. Section
154 does not mandate nor is this requirement manifest from other
provisions of the Criminal Code. Further, FIR is not meant to be a
detailed document containing chronicle of all intricate and minute
details. In Dharma Rama Bhagare v. State of Maharashtra,118
it
was held that an FIR is not even considered to be a substantive
piece of evidence and can be only used to corroborate or
contradict the informant’s evidence in the court.
74. In Lalita Kumari, a Constitution Bench, of five judges of this Court,
has held that Section 154 of the Criminal Code, in unequivocal
118
(1973) 1 SCC 537

terms, mandates registration of FIR on receipt of all cognisable
offences, subject to exceptions in which case a preliminary inquiry
is required. The petitioner has not contended that the present case
falls under any of such exceptions. Conspicuously, there is a
distinction between arrest of an accused person under Section 41
of the Criminal Code and registration of the FIR, which helps
maintain delicate balance between interest of the society manifest
in Section 154 of the Criminal Code, which directs registration of
FIR in case of cognisable offences, and protection of individual
liberty of those persons who have been named in the complaint.
The Constitution Bench referring to the decision of this Court in
Tapan Kumar Singh reiterated that the FIR is not an
encyclopaedia disclosing all facts and details relating to the
offence. The informant who lodges the report of the offence may
not even know the name of the victim or the assailant or how the
offence took place. He need not necessarily be an eye-witness.
What is essential is that the information must disclose the
commission of a cognisable offence and the information must
provide basis for the police officer to suspect commission of the
offence. Thus, at this stage, it is enough if the police officer on the
information given suspects – though he may not be convinced or
satisfied – that a cognisable offence has been committed.

Truthfulness of the information would be a matter of investigation
and only there upon the police will be able to report on the
truthfulness or otherwise. Importantly, in Tapan Kumar Singh, it
was held that even if information does not furnish all details, it is
for the investigating officer to find out those details during the
course of investigation and collect necessary evidence. Thus, the
information disclosing commission of a cognisable offence only
sets in motion the investigating machinery with a view to collect
necessary evidence, and thereafter, taking action in accordance
with law. The true test for a valid FIR, as laid down in Lalita
Kumari, is only whether the information furnished provides reason
to suspect the commission of an offence which the police officer
concerned is empowered under Section 156(1) of the Criminal
Code to investigate. The questions as to whether the report is true;
whether it discloses full details regarding the manner of
occurrence; whether the accused is named; or whether there is
sufficient evidence to support the allegation are all matters which
are alien to consideration of the question whether the report
discloses commission of a cognisable offence. As per clauses (1)
(b) and (2) of Section 157 of the Criminal Code, a police officer
may foreclose an FIR before investigation if it appears to him that
there is no sufficient ground to investigate. At the initial stage of the

registration, the law mandates that the officer can start
investigation when he has reason to suspect commission of
offence. Requirements of Section 157 are higher than the
requirements of Section 154 of the Criminal Code. Further, a police
officer in a given case after investigation can file a final report
under Section 173 of the Criminal Code seeking closure of the
matter.
(vi) Conclusion and relief
75. At this stage and before recording our final conclusion, we would
like to refer to decision of this Court in Pirthi Chand wherein it has
been held:
“12. It is thus settled law that the exercise of inherent
power of the High Court is an exceptional one. Great
care should be taken by the High Court before
embarking to scrutinise the FIR/charge-sheet/
complaint. In deciding whether the case is rarest of rare
cases to scuttle the prosecution in its inception, it first
has to get into the grip of the matter whether the
allegations constitute the offence. It must be
remembered that FIR is only an initiation to move the
machinery and to investigate into cognizable offence.
After the investigation is conducted (sic concluded) and
the charge-sheet is laid, the prosecution produces the
statements of the witnesses recorded under Section
161 of the Code in support of the charge-sheet. At that
stage it is not the function of the court to weigh the pros
and cons of the prosecution case or to consider
necessity of strict compliance of the provisions which
are considered mandatory and its effect of non-
compliance. It would be done after the trial is
concluded. The court has to prima facie consider from

the averments in the charge-sheet and the statements
of witnesses on the record in support thereof whether
court could take cognizance of the offence on that
evidence and proceed further with the trial. If it reaches
a conclusion that no cognizable offence is made out, no
further act could be done except to quash the charge-
sheet. But only in exceptional cases, i.e., in rarest of
rare cases of mala fide initiation of the proceedings to
wreak private vengeance [issue of process under
Criminal Procedure Code is availed of. A reading of a
complaint or FIR itself does not disclose at all any
cognizable offence — the court may embark upon the
consideration thereof and exercise the power.
13. When the remedy under Section 482 is available,
the High Court would be loath and circumspect to
exercise its extraordinary power under Article 226 since
efficacious remedy under Section 482 of the Code is
available. When the court exercises its inherent power
under Section 482, the prime consideration should only
be whether the exercise of the power would advance
the cause of justice or it would be an abuse of the
process of the court. When investigating officer spends
considerable time to collect the evidence and places the
charge-sheet before the court, further action should not
be short-circuited by resorting to exercise inherent
power to quash the charge-sheet. The social stability
and order requires to be regulated by proceeding
against the offender as it is an offence against the
society as a whole. This cardinal principle should
always be kept in mind before embarking upon
exercising inherent power. The accused involved in an
economic offence destabilises the economy and causes
grave incursion on the economic planning of the State.
When the legislature entrusts the power to the police
officer to prevent organised commission of the offence
or offences involving moral turpitude or crimes of grave
nature and are entrusted with power to investigate into
the crime in intractable terrains and secretive manner in
concert, greater circumspection and care and caution
should be borne in mind by the High Court when it
exercises its inherent power. Otherwise, the social order
and security would be put in jeopardy and to grave risk.
The accused will have field day in destabilising the

economy of the State regulated under the relevant
provisions.”
The aforesaid ratio was followed by this Court in O.P.
Sharma.
76. In Arnab Ranjan Goswami, this Court in almost identical
circumstances had refused to examine the question whether the
proceedings arising out of the FIR filed against a journalist should
be quashed in exercise of jurisdiction under Article 32 of the
Constitution on the ground that the petitioner must be relegated to
pursue equally efficacious remedies under the Criminal Code,
observing:
“49. We hold that it would be inappropriate for the court
to exercise its jurisdiction under Article 32 of the
Constitution for the purpose of quashing FIR 164 of
2020 under investigation at the NM Joshi Marg Police
Station in Mumbai. In adopting this view, we are guided
by the fact that the checks and balances to ensure the
protection of the petitioner's liberty are governed by the
CrPC. Despite the liberty being granted to the petitioner
on 24 April 2020, it is an admitted position that the
petitioner did not pursue available remedies in the law,
but sought instead to invoke the jurisdiction of this
Court. Whether the allegations contained in the FIR do
or do not make out any offence as alleged will not be
decided in pursuance of the jurisdiction of this Court
under Article 32, to quash the FIR. The petitioner must
be relegated to the pursuit of the remedies available
under the CrPC, which we hereby do. The petitioner
has an equally efficacious remedy available before the
High Court. We should not be construed as holding that
a petition under Article 32 is not maintainable. But when
the High Court has the power under Section 482, there

is no reason to by-pass the procedure under the CrPC,
we see no exceptional grounds or reasons to entertain
this petition under Article 32. There is a clear distinction
between the maintainability of a petition and whether it
should be entertained. In a situation like this, and for the
reasons stated hereinabove, this Court would not like to
entertain the petition under Article 32 for the relief of
quashing the FIR being investigated at the NM Joshi
Police Station in Mumbai which can be considered by
the High Court. Therefore, we are of the opinion that the
petitioner must be relegated to avail of the remedies
which are available under the CrPC before the
competent court including the High Court.”
77. We respectfully agree with the aforesaid ratio. Ordinarily we would
have relegated the petitioner and asked him to approach the
concerned High Court for appropriate relief, albeit in the present
case detailed arguments have been addressed by both sides on
maintainability and merits of the FIRs in question and, therefore,
been dealt with by us and rejected at this stage. We do not, in view
of this peculiar circumstance, deem it appropriate to permit the
petitioner to open another round of litigation; therefore, we have
proceeded to answer the issues under consideration.
78. We have already reproduced relevant portions of the transcript of
the debate anchored by the petitioner. It is apparent that the
petitioner was an equal co-participant, rather than a mere host.
The transcript, including the offending portion, would form a part of
the ‘content’, but any evaluation would require examination and

consideration of the variable ‘context’ as well as the ‘intent’ and the
‘harm/impact’. These have to be evaluated before the court can
form an opinion on whether an offence is made out. The evaluative
judgment on these aspects would be based upon facts, which
have to be inquired into and ascertained by police investigation.
‘Variable content’, ‘intent’ and the ‘harm/impact’ factors, as
asserted on behalf of the informants and the State, are factually
disputed by the petitioner. In fact, the petitioner relies upon his
apology, which as per the respondents/informants is an indication
or implied acceptance of his acts of commission.
79. Having given our careful and in-depth consideration, we do not
think it would be appropriate at this stage to quash the FIRs and
thus stall the investigation into all the relevant aspects. However,
our observations on the factual matrix of the present case in this
decision should not in any manner influence the investigation by
the police who shall independently apply their mind and ascertain
the true and correct facts, on all material and relevant aspects.
Similarly, the competent authority would independently apply its
mind in case the police authorities seek sanction, and to decide,
whether or not to grant the same. Same would be the position in
case charge-sheet is filed. The court would apply its mind whether

or not to take cognisance and issue summons. By an interim order,
the petitioner has enjoyed protection against coercive steps arising
out of and relating to the program telecast on 15.06.2020. Subject
to the petitioner cooperating in the investigation, we direct that no
coercive steps for arrest of the petitioner need be taken by the
police during investigation. In case and if charge-sheet is filed, the
court would examine the question of grant of bail without being
influenced by these directions as well as any findings of fact
recorded in this judgment.
80. We are conscious and aware of the decisions of this Court in
Bhajan Lal, P.P. Sharma and the earlier decision in R.P. Kapur
which held that the High Court, in exercise of inherent jurisdiction,
can quash proceedings in a proper case either to prevent abuse of
process or otherwise to secure ends of justice. These could be
cases where, manifestly, there is a legal bar against institution or
continuance of the prosecution or the proceedings, such as due to
requirement of prior sanction; or where the allegations made in the
FIR or the complaint, even if they are taken at their face value and
accepted in their entirety do not prima facie constitute any offence
or make out a case against the accused; or where the allegations
in the FIR do not disclose a cognizable offence; or where the

allegations made in the FIR or complaint are so absurd and
inherently improbable on the basis of which no prudent person can
ever reach a just conclusion that there is sufficient ground for
proceeding against the accused. Another qualifying category in
cases where charge-sheet is filed would be those where
allegations against the accused do constitute the offence alleged,
but there is either no legal evidence adduced in support of the
case or the evidence adduced clearly or manifestly fails to prove
the charge. Application of these principles depends on factual
matrix of each case. Strict and restricted as the requirements are,
they are at this stage not satisfied in the present case.
D. The second prayer – multiplicity of FIRs and whether they
should be transferred and clubbed with the first FIR
registered at P.S. Dargha, Ajmer, Rajasthan
81. We would now examine the second prayer of the petitioner viz.
multiplicity of FIRs being registered in the States of Rajasthan,
Maharashtra, Telangana, and Madhya Pradesh (now transferred to
Uttar Pradesh) relating to the same broadcast. Fortunately, both
the sides agree that the issue is covered by the decision of this
Court in T.T. Antony which has been followed in Arnab Ranjan
Goswami’s case. It would be appropriate in this regard to

therefore reproduce the observations in Arnab Ranjan
Goswami’s case which are to the following effect:
“28...The law concerning multiple criminal proceedings
on the same cause of action has been analyzed in a
judgment of this Court in TT Antony v. State of
Kerala (“TT Antony”). Speaking for a two judge Bench,
Justice Syed Shah Mohammed Quadri interpreted the
provisions of Section 154 and cognate provisions of the
CrPC including Section 173 and observed:
“20…under the scheme of the provisions of
Sections 154, 155, 156, 157, 162, 169, 170 and
173 CrPC, only the earliest or the first information
in regard to the commission of a cognizable
offence satisfies the requirements of Section 154
CrPC. Thus, there can be no second FIR and
consequently there can be no fresh investigation
on receipt of every subsequent information in
respect of the same cognizable offence or the
same occurrence or incident giving rise to one or
more cognizable offences. On receipt of
information about a cognizable offence or an
incident giving rise to a cognizable offence or
offences and on entering the FIR in the station
house diary, the officer in charge of a police
station has to investigate not merely the
cognizable offence reported in the FIR but also
other connected offences found to have been
committed in the course of the same transaction
or the same occurrence and file one or more
reports as provided in Section 173 CrPC.”
The Court held that “there can be no second FIR”
where the information concerns the same cognisable
offence alleged in the first FIR or the same occurrence
or incident which gives rise to one or more cognisable
offences. This is due to the fact that the investigation
covers within its ambit not just the alleged cognisable
offence, but also any other connected offences that
may be found to have been committed. This Court held
that once an FIR postulated by the provisions of Section
154 has been recorded, any information received after

the commencement of investigation cannot form the
basis of a second FIR as doing so would fail to comport
with the scheme of the CrPC. The court observed:
“18…AII other information made orally or in
writing after the commencement of the
investigation into the cognizable offence disclosed
from the facts mentioned in the first information
report and entered in the station house diary by
the police officer or such other cognizable
offences as may come to his notice during the
investigation, will be statements falling under
Section 162 CrPC. No such information/ statement
can properly be treated as an FIR and entered in
the station house diary again, as it would in effect
be a second FIR and the same cannot be in
conformity with the scheme of CrPC.”
This Court adverted to the need to strike a just balance
between the fundamental rights of citizens under
Articles 19 and 21 and the expansive power of the
police to investigate a cognisable offence. Adverting to
precedent, this Court held:
“27…the sweeping power of investigation does not
warrant subjecting a citizen each time to fresh
investigation by the police in respect of the same
incident, giving rise to one or more cognizable
offences, consequent upon filing of successive
FIRs whether before or after filing the final report
under Section 173(2) CrPC. It would clearly be
beyond the purview of Sections 154 and 156
CrPC, nay, a case of abuse of the statutory power
of investigation in a given case. In our view a case
of fresh investigation based on the second or
successive FIRs, not being a counter-case, filed in
connection with the same or connected cognizable
offence alleged to have been committed in the
course of the same transaction and in respect of
which pursuant to the first FIR either investigation
is under way or final report under Section 173(2)
has been forwarded to the Magistrate, may be a fit
case for exercise of power under Section 482

CrPC or under Articles 226/227 of the
Constitution.”
(Emphasis supplied)
The Court held that barring situations in which a
counter-case is filed, a fresh investigation or a second
FIR on the basis of the same or connected cognisable
offence would constitute an “abuse of the statutory
power of investigation” and may be a fit case for the
exercise of power either under Section 482 of the CrPC
or Articles 226/227 of the Constitution.
29. The decision in TT Antony came up for
consideration before a three judge Bench in Upkar
Singh v. Ved Prakash (“Upkar Singh”). Justice N
Santosh Hegde, speaking for this Court adverted to the
earlier decisions of this Court in Ram Lal
Narang v. State (Delhi Administration) (“Ram Lal
Narang”), Kari Choudhary v. Mst. Sita Devi (“Kari
Choudhary”) and State of Bihar v. JAC
Saldanha (“Saldanha”). The Court noted that in Kari
Choudhary, this Court held that:
“11…Of course the legal position is that there
cannot be two FIRs against the same accused in
respect of the same case. But when there are rival
versions in respect of the same episode, they
would normally take the shape of two different
FIRs and investigation can be carried on under
both of them by the same investigating agency.”
30. In Saldanha, this Court had held that the power
conferred upon the Magistrate under Section 156(3)
does not affect the power of the investigating officer to
further investigate the case even after submission of the
report under Section 173(8). In Upkar Singh, this Court
noted that the decision in Ram Lal Narang is “in the
same line” as the judgments in Kari Choudhary and
Saldanha and held that the decision in TT Antony does
not preclude the filing of a second complaint in regard
to the same incident as a counter complaint nor is this
course of action prohibited by the CrPC. In that context,
this Court held:

“23. Be that as it may, if the law laid down by this
Court in T.T. Antony case is to be accepted as
holding that a second complaint in regard to the
same incident filed as a counter-complaint is
prohibited under the Code then, in our opinion,
such conclusion would lead to serious
consequences. This will be clear from the
hypothetical example given hereinbelow i.e. if in
regard to a crime committed by the real accused
he takes the first opportunity to lodge a false
complaint and the same is registered by the
jurisdictional police then the aggrieved victim of
such crime will be precluded from lodging a
complaint giving his version of the incident in
question, consequently he will be deprived of his
legitimate right to bring the real accused to book.
This cannot be the purport of the Code.”
These principles were reiterated by a two judge Bench
of this Court in Babubhai v. State of Gujarat. Dr Justice
B S Chauhan observed:
“21. In such a case the court has to examine the
facts and circumstances giving rise to both the
FIRs and the test of sameness is to be applied to
find out whether both the FIRs relate to the same
incident in respect of the same occurrence or are
in regard to the incidents which are two or more
parts of the same transaction. If the answer is in
the affirmative, the second FIR is liable to be
quashed. However, in case the contrary is proved,
where the version in the second FIR is different
and they are in respect of the two different
incidents/crimes, the second FIR is permissible. In
case in respect of the same incident the accused
in the first FIR comes forward with a different
version or counterclaim, investigation on both the
FIRs has to be conducted.”
This Court held that the relevant enquiry is whether two
or more FIRs relate to the same incident or relate to
incidents which form part of the same transactions. If
the Court were to conclude in the affirmative, the
subsequent FIRs are liable to be quashed. However,

where the subsequent FIR relates to different incidents
or crimes or is in the form of a counter-claim,
investigation may proceed.
[See also in this context Chirra Shivraj v. State of
Andhra Pradesh and Chirag M Pathak v. Dollyben
Kantilal Patel].
The aforesaid quotation refers to the judgment of this Court
in Babubhai v. State of Gujarat and Others119
wherein the test to
determine sameness of the FIRs has been elucidated as when the
subject matter of the FIRs is the same incident, same occurrence
or are in regard to incidents which are two or more parts of the
same transaction. If the answer to the question is affirmative, then
the second FIR need not be proceeded with.
82. In Arnab Ranjan Goswami’s case, the proceedings in the
subsequent FIRs were quashed as the counsel for the
complainants in the said case had joined the petitioner in making
the said prayer. However, in the present case, we would like to
follow the ratio in T.T. Antony which is to the effect that the
subsequent FIRs would be treated as statements under Section
162 of the Criminal Code. This is clear from the following dictum in
T.T. Antony:
“18. An information given under sub-section (1) of
Section 154 CrPC is commonly known as first
119
(2010) 12 SCC 254

information report (FIR) though this term is not used
in the Code. It is a very important document. And as
its nickname suggests it is the earliest and the first
information of a cognizable offence recorded by an
officer in charge of a police station. It sets the criminal
law in motion and marks the commencement of the
investigation which ends up with the formation of
opinion under Section 169 or 170 CrPC, as the case
may be, and forwarding of a police report under
Section 173 CrPC. It is quite possible and it happens
not infrequently that more informations than one are
given to a police officer in charge of a police station in
respect of the same incident involving one or more
than one cognizable offences. In such a case he need
not enter every one of them in the station house diary
and this is implied in Section 154 CrPC. Apart from a
vague information by a phone call or a cryptic
telegram, the information first entered in the station
house diary, kept for this purpose, by a police officer
in charge of a police station is the first information
report — FIR postulated by Section 154 CrPC. All
other informations made orally or in writing after the
commencement of the investigation into the
cognizable offence disclosed from the facts
mentioned in the first information report and entered
in the station house diary by the police officer or such
other cognizable offences as may come to his notice
during the investigation, will be statements falling
under Section 162 CrPC. No such information/
statement can properly be treated as an FIR and
entered in the station house diary again, as it would in
effect be a second FIR and the same cannot be in
conformity with the scheme of CrPC. Take a case
where an FIR mentions cognizable offence under
Section 307 or 326 IPC and the investigating agency
learns during the investigation or receives fresh
information that the victim died, no fresh FIR under
Section 302 IPC need be registered which will be
irregular; in such a case alteration of the provision of
law in the first FIR is the proper course to adopt. Let
us consider a different situation in which H having
killed W, his wife, informs the police that she is killed
by an unknown person or knowing that W is killed by
his mother or sister, H owns up the responsibility and

during investigation the truth is detected; it does not
require filing of fresh FIR against H — the real
offender — who can be arraigned in the report under
Section 173(2) or 173(8) CrPC, as the case may be. It
is of course permissible for the investigating officer to
send up a report to the Magistrate concerned even
earlier that investigation is being directed against the
person suspected to be the accused.”
83. This would be fair and just to the other complainants at whose
behest the other FIRs were caused to be registered, for they would
be in a position to file a protest petition in case a closure/final
report is filed by the police. Upon filing of such protest petition, the
magistrate would be obliged to consider their contention(s), and
may even reject the closure/final report and take cognizance of the
offence and issue summons to the accused. Otherwise, such
complainants would face difficulty in contesting the closure report
before the Magistrate, despite and even if there is enough material
to make out a case of commission of an offence.
84. Lastly, we would also like to clarify that Section 179 of the Criminal
Code permits prosecution of cases in the court within whose local
jurisdiction the offence has been committed or consequences have
ensued. Section 186 of the Criminal Code relates to cases where
two separate charge-sheets have been filed on the basis of
separate FIRs and postulates that the prosecution would proceed
where the first charge-sheet has been filed on the basis of the FIR

that is first in point of time. Principle underlying section 186 can be
applied at the pre-charge-sheet stage, that is, post registration of
FIR but before charge-sheet is submitted to the Magistrate. In such
cases ordinarily the first FIR, that is, the FIR registered first in point
of time, should be treated as the main FIR and others as
statements under Section 162 of the Criminal Code. However, in
exceptional cases and for good reasons, it will be open to the High
Court or this Court, as the case may be, to treat the subsequently
registered FIR as the principal FIR. However, this should not cause
any prejudice, inconvenience or harassment to either the victims,
witnesses or the person who is accused. We have clarified the
aforesaid position to avoid any doubt or debate on the said aspect.
85. In view of our findings, we accept the prayer made in the last
amended writ petition and transfer all FIRs listed at serial No. 2 to
7 in paragraph 4 (supra) to police station Dargah, Ajmer,
Rajasthan, where the first FIR was registered. We do not find any
good ground or special reason to transfer the FIRs to Noida, Uttar
Pradesh. Statement of the complaint/informant forming the basis of
the transferred FIRs would be considered as statement under
Section 162 of the Criminal Code and be proceeded with.
Compliance of the above directions to transfer papers would be

made by the concerned police station within four weeks when they
receive a copy of this order. The above directions would equally
apply to any other FIR/complaint predicated on the same telecast/
episode.
E. The third prayer
86. Regarding the third prayer made by the petitioner, following the
ratio laid down in Arnab Ranjan Goswami we direct the State of
Uttar Pradesh to examine the threat perception for the petitioner
and his family members and take appropriate steps as may
necessary. Similar assessment be made by the State of Rajasthan
and based on the inputs given by its agencies steps as may be
necessary be taken on usual terms.
Operative directions
87. In view of the aforesaid discussion, we decline and reject the
prayer of the petitioner for quashing of the FIRs but have granted
interim protection to the petitioner against arrest subject to his
joining and cooperating in investigation till completion of the
investigation in terms of our directions in paragraphs 79 and 85
above. We have however accepted the prayer of the petitioner for
transfer of all pending FIRs in relation to and arising out of the
telecast/episode dated 15th
June 2020 to P.S. Dargah, Ajmer,

Rajasthan, where the first FIR was registered. On the third prayer,
we have asked the concerned states to examine the threat
perception of the petitioner and family members and take
appropriate steps as may be necessary.
88. The writ petition and all pending applications are, accordingly,
disposed of in the aforesaid terms.
......................................J.
(A.M. KHANWILKAR)
......................................J.
(SANJIV KHANNA)
NEW DELHI;
DECEMBER 07, 2020.

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